U.S. Supreme Court. Photo by Adam Michael Szuscik
U.S. Supreme Court. Photo by Adam Michael Szuscik
To satisfy Trump's appeal, the Supreme Court would have to find that any future president who loses an election and is unhappy about it will be able overturn it so long as he labels everything he does an “official act.”
Republished with permission from Lucian K. Truscott IV
Donald Trump is hanging the entire Supreme Court appeal he filed this afternoon on what we might call the founding decision of American jurisprudence, Marbury v Madison, the 1803 Supreme Court decision written by Chief Justice John Marshall.
According to Donald Trump, it’s all down to a Supreme Court decision written 220 years ago which found that because all executive authority is “vested” in the president, “Questions … which are, by the constitution and laws, submitted to the executive, can never be made in this court.” According to John Marshall, “discretionary acts are only politically examinable,” and thus a president’s official acts “can never be examinable by the courts.”
In order to use Marbury, Trump needs everything he did to be an “official act,” so right at the top of his appeal, in the first paragraph of what they called a “Statement” to the court, it says, “President Trump Was Indicted for His Official Acts as President.”
So, let’s have a look at what were those official acts Trump’s appeal is talking about? Well, that’s easy: it’s everything he did in 2020 and 2021 after he lost the election for the presidency.
First, the appeal claims that Trump used “official channels of communication” including tweets and “other public statements…contending that the 2020 federal election was tainted by fraud and irregularities that should be addressed by government officials.”
That would be, uh, let’s see, all the lies he told that he won the election, that it was “stolen” from him, and that Joe Biden lost. In other words, every time he opened his mouth. Official act number one.
“Second, indictment alleges that President Trump communicated with the Acting Attorney General and officials at the U.S. Department of Justice—which he oversaw as an integral part of his official duties as chief executive—about investigating suspected election crimes and irregularities, and possibly appointing a new Acting Attorney General.”
You remember that don’t you? Some minor league goof from the Department of Justice in charge of environmental law, of all things, gets himself a meeting with Trump in the Oval Office and Trump tells him it would be a good idea if he wrote a letter to state legislatures telling them that the DOJ had serious doubts about the legitimacy of their elections to jump start them into holding a bunch of phony hearings on “election irregularities” that didn’t exist. The guy’s name was Jeffrey Clark. He’s under indictment in Georgia for listening to Trump’s lies and following Trump’s directions to draft a letter to the Georgia legislature telling them a lie that the DOJ had evidence the Georgia election was illegitimate, which the DOJ didn’t have, and the Georgia election wasn’t. The letter was drafted but the Acting Attorney General refused to send it because it was a lie. Official act number two.
“Third, the indictment alleges that President Trump communicated with state officials about the administration of the federal election and urged them to exercise their official responsibilities in accordance with the conclusion that the 2020 presidential election was tainted by fraud and irregularities.”
That would be the lies Trump told to state legislators from Pennsylvania, Michigan and other states during which he told them that the election was stolen from him, and the legislatures should go into special session and appoint new slates of electors and submit them to the National Archives to be certified on Jan. 6. The “official responsibilities” Trump told the legislatures they had, well, they didn’t have them, so that was a lie, too. He told them they should do a bunch of stuff they didn’t have the authority to do, yet another lie, so Trump could win the election he had lost in their states. Official act number three.
“Fourth, the indictment alleges that President Trump communicated with the Vice President in his capacity as President of the Senate, the Vice President’s official staff, and other members of Congress to urge them to exercise their official duties in the election certification process in accordance with President Trump’s contention that the election was tainted by fraud and irregularities.”
For “contention” in the above paragraph, read “lie.” In a meeting in the Oval Office and in several phone calls, Pence told Trump that he did not have authority under the Constitution to consider slates of electors that were not officially submitted by the states. Trump told him a big fat lie that he did have the authority and called him a “pussy” for not doing what Trump told him to do. Later, Trump would tweet during the insurrection that Pence did not have the “courage” to do what Trump told him to do, thus endangering the life of Pence. Official act four.
“Fifth, the indictment alleges that other individuals organized slates of alternate electors from seven States to ensure that the Vice President would be authorized to exercise his official duties in the manner urged by President Trump. According to the indictment, these alternate slates of electors were designed to validate the Vice President’s authority to conduct his official duties as President Trump urged.”
Just wow. The “other individuals” Trump is talking about were Republican officials, including some elected officials, who were instructed by lawyers working for Trump to commit felonies by putting their names to official documents saying they were legitimate electors from their states, when they were not. Trump’s lawyers lied to them on Trump’s instructions by saying what they are being told to do is completely legitimate, when it is not. Many of these fake electors end up getting indicted back in their states for making false statements on official documents, “false statements” being themselves lies. So, a lie from Trump begets lies from fake electors to enable the lie that Trump told Pence that he could accept slates of fake electors that were themselves lies. Official act five.
Are you with me? These are the official presidential acts Trump told the Supreme Court today are protected by John Marshall’s decision in Marbury v. Madison, because of course, way back in 1803, what the Chief Justice of the Supreme Court said was, if you tell enough lies, you can fool most of the people most of the time and get away with pretty much anything you want to do.
Makes sense, doesn’t it? Here’s John Marshall, who played a key role in the ratification of the U.S. Constitution in the state of Virginia, who was elected to the Virginia House of Delegates and subsequently to the U.S. House of Representatives. He was appointed Secretary of State by John Adams, and then Chief Justice of the Supreme Court.
This early American revolutionary who volunteered for service in the Revolutionary War, fought in numerous battles as part of the 3rd Virginia Regiment, including the Battle of Brandywine, survived the brutal winter at Valley Forge, this is the man who Trump’s appeal tried to make a case believed that anything a president does…anything …is legal as long as the president labels it an “official act.”
To go down that road, the Supreme Court will have to find that any future first term sitting president who loses an election and is unhappy about it will be able overturn the election he just lost by telling lies, suborning perjury, inducing others to commit felonies, committing felonies himself, even incite an insurrection, so long as he labels everything he does an “official act.”
That’s old John Marshall for you. That’s what the Chief Justice meant when he sat down to write Marbury v Madison in 1803 and looked into the future and said to himself…let me see, how can I maneuver the Constitution to help to make the President of the United States just like the King of England I just fought a war against.
See how easy that is? First, you tell a gigantic lie that you won the election that you lost, then you spread that lie around by committing multiple crimes and inducing others to join you in those crimes, and then you hire a bunch of lawyers and get them to tell a whopper of a lie to the Supreme Court that it was all legal because John Marshall said so.
This, folks, is what is known in New York City as chutzpah.
Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist and screenwriter. He has covered stories such as Watergate, the Stonewall riots and wars in Lebanon, Iraq and Afghanistan. He is also the author of five bestselling novels and several unsuccessful motion pictures. He has three children, lives in rural Pennsylvania and spends his time Worrying About the State of Our Nation and madly scribbling in a so-far fruitless attempt to Make Things Better.
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