Last week, Special Counsel Jack Smith submitted a 165-page brief to Judge Tanya Chutkan in the prosecution of Donald Trump for trying to overthrow the Constitution’s peaceful transfer of power.
The filing shows how outrageous it was for the Supreme Court to issue Trump v. U.S. just four months ago. That ruling conferred vast immunity on presidents who break the law, so long as they do so as part of “official” acts.
When the justices stalled the arguments and delayed the ruling until the last day of the term, then sent fuzzy instructions to the trial judge, they ensured that Trump would not face a criminal jury before the election. Voters were deprived of vital information too. This was a judicially executed cover-up.
As the Supreme Court term starts this week, the most important cases may well be those that have not yet even been added to the docket. The justices will likely rule on election cases. And they may hear appeals in the Trump prosecution, offering them a chance to compound the damage already done. All of which makes clear, yet again, why the Supreme Court itself needs reform.
According to Smith’s filing, Trump knew he had lost the election. His aides and his vice president told him so repeatedly. He reportedly told family members, “It doesn’t matter if you win or lose. You have to fight like hell.” His schemes to overturn the voters’ will were a direct and conscious effort to stay in the White House for another term.
Sen. Tom Cotton (R-AR) called the filing “a temper tantrum from a deranged fanatic.” (He meant Smith, by the way, not Trump.) That’s wrong. By stalling the case, Trump’s lawyers and the Supreme Court pushed these proceedings into the weeks before the election. Nothing in Justice Department rules or the criminal law stops a prosecutor from making a filing like this, as top Watergate prosecutor Phil Lacovara and others have explained. As for the complaint that this sworn testimony has not been subjected to the rigors of a trial, with the defendant able to rebut the damning evidence, well, yes — all the more reason for a speedy and public trial.
All of this underscores why term limits for the Supreme Court make sense. ***
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