New Orleans Here’s a way to understand how the conservative majority on the US Supreme Court thinks by way of a riddle. What does a politician taking a bribe have in common with a politician inciting an insurrection? The answer from the Court’s majority is straightforward: they are the same if it is part of the politician’s “official duties.”
In a nutshell, that’s the view of the Court on the question of where or not former President Trump can be criminally tried for his role in the January 6th takeover of the Capitol. If his role in the insurrection could somehow be shoehorned into his job description and official duties, then it’s hunky-dorky. If not, as Justice Amy Barrett argued, once the lower court sorts that question out, then he’s not immune and subject to trail. If inciting to riot is part of his job description, then he walks free. He’s the Pied Piper in that case who keeps on playing the music while his followers all go over the edge and off to jail.
Of course, the three judges in the minority on this merry-go-round had their hair on fire at this decision. They claimed with good cause that Chief Justice Roberts and the conservative majority have created an imperial presidency that is above the law. Some without too many reservations thought we had just opened the door to a figure equivalent to the king.
I have to admit, that I had called this one wrong. I thought there was no way that conservatives would offer immunity even for an ex-president when there had been a riotous full assault on one of the primary institutions of American government. I had thought that was likely a level of impunity that was a bridge too far for this crew, even if they had taken a blood oath to Trump to get their jobs or keep them.
I should have known better and seen this coming. This same court had modified their views on what constituted public bribery in earlier decisions, weakening convictions of some lesser pols by expanding the flexibility of the definition of official duties. It wasn’t so long ago that New Orleans Congressman William Jefferson did time on this question after he and his lawyers argued that about his representation of various interests foreign and domestic were part of his “official duties” and broad definition of official duties. He lost even as the standard became more diluted in more recent decisions. New Jersey Senator Menendez started out with this same argument before throwing his wife under the bus.
The problem for the imperial court and the wannabe kings is where do you draw the line? When it comes to money, we are led in these days of big money in politics that one man’s bribe is simply another man’s campaign donation. There’s no bright line test that helps there, especially because to most of us influence peddling smells bad either way. When it comes to an ex-president, where is the line? If he egged the crowd on, but didn’t personally throw an egg, was he performing his official duties? It’s the classic problem of what to do with someone who throws a rock and then hides his hand. They might walk away even as the rocks knock you and others to the ground and bleeding.
We’re going somewhere new now in America. The Supreme Court majority seems happy about that, but the rest of us might be in a world of hurt now, even if that’s unofficial.