This Is the Big One
Plus: Abandoning Ukraine.
“This case presents a fundamental question at the heart of our democracy: whether a former President is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin.” — The Special Counsel, U.S. v Donald J. Trump
Jack Smith has gone directly to the Supreme Court to get a ruling on the question of whether — as Trump claims — former presidents are above the law and immune from any accountability for their violations of federal criminal law while in office. Judge Tanya Chutkan rejected that claim, but as Smith notes, Trump’s appeal “suspends the trial of the charges against him, scheduled to begin on March 4, 2024.”
As I mentioned briefly yesterday, this is The One — the one ruling to rule them all.
“It is of imperative public importance that respondent’s claims of immunity be resolved by this Court and that respondent’s trial proceed as promptly as possible if his claim of immunity is rejected,” Smith argues, while pointing out that Trump’s claims “are profoundly mistaken, as the district court held.”
“Defendant’s four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.”
“No man in this country,” not even the former President, “is so high that he is above the law.”
“By definition, the President’s duty to ‘take Care that the Laws be faithfully executed’ does not grant special latitude to violate them.”
“As the Supreme Court has stated, that principle must govern citizens and officials alike: No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.”
But, as Smith writes, only the Supreme Court can “definitively resolve the question. Which is why he is asking SCOTUS to grant a writ of certiorari before judgment “to ensure that it can provide the expeditious resolution that this case warrants, just as it did in United States v. Nixon.”
It’s hard to overstate what’s at stake here: not just the scheduling of Trump’s trials, but the constitutional balance itself. If SCOTUS upholds Trump’s immunity claim, it would be a defining ruling, not just for this Court, and for the nation — because the president would, in effect, be above the law. In more rational times, the Court would reject that notion, and the vote would be unanimous. But, as you may have noticed, we do not live in those times.
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David Frum: A Dark Path
If Trump wins, the first crime of his second term will be committing perjury—when he swears to defend the Constitution. Plus, Republicans aren’t really looking for a deal on the border: They’re trying to rationalize abandoning Ukraine. David Frum joins me.
You can listen to the whole thing here. Or watch us on YouTube.
You can read David’s latest pieces here: The Danger Ahead - The Atlantic and Why the GOP Wants No Deal on the Border and Ukraine - The Atlantic.
BONUS: On our weekly podcast for Bulwark + members, Mona Charen and I take a deep dive into the fragility of liberal democracy.
Are we about to abandon Ukraine?
Volodymyr Zelenskyy’s last-ditch plea failed to do the trick.
Despite a visit to Capitol Hill by Ukraine’s president on Tuesday, Senate Republicans didn’t budge on their demands for stricter new border policies as a condition for supporting more aid to the war-torn country. Instead, they expressed growing pessimism about being able to lock in a deal by the time the House and Senate skip town for its scheduled Christmas recess at the week’s end.
Timothy Snyder had some thoughts last month about the choice we are about to make:
Imagine that freedom was in decline around the world. Imagine that things had gotten so bad that a dictatorship actually invaded a democracy with the express goal of destroying its freedoms and its people. And yet... imagine that this people fought back.
Imagine that their leaders stayed in the country. Imagine that this people got themselves together, supported and joined their armed forces, held back an invasion of what seemed like overwhelming force. Imagine that their resistance is a bright moment in the history of democracy this whole century.
We don't have to imagine: that attack came from Russia and those people are the Ukrainians.
Would you sell them out?
"A world in which Putin defeats Ukraine is one where the U.S.’s standing in the world is diminished, where Iran and North Korea are emboldened, where China dominates the Indo-Pacific, where the Middle East becomes more unstable.”
Exit take: General Mark Hertling:
1. Trump Said Too Much Too Soon
So is the long list of authoritarian goals Trump and his allies have articulated already: invoking the Insurrection Act on his first day in office, pardoning the insurrectionists who sacked the capitol on January 6th in the deadly riot he incited, creating immigrant detention camps, prosecuting political enemies and members of the media, overhauling the civil service to fill as many positions as possible with political appointees who will serve carry out any order out of loyalty to him rather than fealty to the Constitution and the rule of law, and perhaps investigating MSNBC for what Trump called “its ‘Country Threatening Treason.’”
The aspiring tyrant has spared no detail or deranged desire. Recently, Trump promised a religious test for immigrants and asserted that if anyone doesn’t “like our religion,” then he doesn’t want them in America.
2. Checks and Balances Won’t Save Us from Trump
Even the supposedly serious conservatives on the Wall Street Journal editorial board assure readers that “We think American institutions are strong enough to contain whatever designs Mr. Trump has to abuse presidential power.”
The real danger, as the Journal editorialists see it, is that “his chaos theory of governance would result in a second term that failed to deliver on his promises and set up the left for huge gains in 2026 and 2028.” So the Journal isn’t at all concerned that Trump would follow through on plans to instruct the Justice Department to prosecute his opponents; pardon all of the January 6th rioters, fake electors, and others who helped him attempt to steal the 2020 election; withdraw from NATO; impose a 10 percent tariff on all imports; investigate NBC for treason; and shoot shoplifters on sight.
This complacency is dangerous. The truth is that institutions don’t uphold themselves. They require constant reinforcement and reaffirmation. They depend upon individuals who are committed to something other than their own narrow self-interest. Our institutions were not strong before Trump took center stage in American life, and they are even weaker now.
3. Impeachment Is Just Another Word for Getting Even. Thanks, GOP.
The farcical Biden proceedings, built on a foundation of debunked conspiracy theories and loan repayments from relatives when he was a private citizen, turn the constitutional equivalent of a political death penalty into a tool of political retribution. Yet as the corrupt and vengeful Trump has shown, when the wrongdoing is massive and indisputable, lawmakers and courts shrink from taking it on.
4. Giuliani Defamation Trial Keeps Getting Worse for Him (and Trump)
Giuliani’s statement to ABC News reporter Terry Moran outside the courthouse on Monday that “everything I said about them is true” and that Freeman and Moss “were engaged in changing votes” drew a sharp rebuke from Howell, who called his statements “additional defamatory comments.” His own lawyer told Howell, “I don’t know how” his comments “are reconcilable.”
In July, Giuliani stipulated in writing that “for the purpose of deciding the case on the legal issues, he does not contest” that the statements in the plaintiffs’ amended complaint are “defamatory per se,” and that he “published those statements to third parties.” By conceding the key facts, Giuliani bypassed his discovery obligations; the plaintiffs no longer needed complete information to prove the facts of the underlying claims.
To nonetheless continue to lie in public is stunningly unethical—even for Giuliani.
Dumbest bet imaginable.