Republished with permission from Lucian K. Truscott IV

Here we go with yet another of this Supreme Court’s nonsensical, nearly impenetrable and ignorant decisions. By now, reams have been written about this week’s ruling in Trump vs. United States, finding that he and all presidents are immune from prosecution after leaving office for any “official acts” taken while they served as president. The decision was written by that Shakespeare of judicial reasoning and writing, Chief Justice John Roberts—remember his line in the case that defenestrated the Voting Rights Act, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

I mean, huh? That’s what passes for judicial reasoning?

Roberts probably thought he was clever when he threw a bone to the libs by writing that former presidents could be prosecuted for unofficial acts. Then he proceeded to erect a scaffolding of legalistic tests to protect former presidents from prosecution for even those so-called unofficial acts, including a provision that bars using any part of an allegedly official act from being used as evidence to determine whether another act was unofficial and could thus be prosecuted.

Even Justice Amy Comey Barrett pointed out in a dissent from the Roberts opinion—from the opinion but not from the 6-3 vote, mind you—that it would be impossible to prosecute an ex-president for having taken a bribe to appoint someone to an ambassadorship because the quid—the actual act of making the appointment—couldn’t be used alongside the quo, taking the bribe, because appointing an ambassador is an official act.

Does that make any sense at all? It didn’t to me, either, until I realized that in all these outrageous departures by the Supreme Court from our Constitutional norms, incoherence is the point. Roberts knew he didn’t need for his decision giving Trump immunity to make sense because he had the votes. Last week, in overturning an EPA ruling that states had to comply with ozone protection regulations, Justice Neil Gorsuch was similarly incoherent by ruling that the EPA did a bad thing when it “sought to impose nitrous oxide emissions control measures that ‘maximized cost-effectiveness.’”

Nitrous oxide is, of course, “laughing gas” that gets you high. What the EPA wanted to control was emissions of nitrogen oxides, a chemical component of smog which, because it’s in the air released by power plants and other polluters, spreads across state lines. The EPA was trying to impose so-called “good neighbor” regulations to prevent one state with lower pollution regulations from spreading its dirty air into states with stricter clean air regulations. He referred to the wrong chemical component of the pollution in question a total of five times in his decision.

Do you think it mattered to this Supreme Court that they got wrong the name of the actual pollutant they were writing about, adding to the decision’s incoherence? Not a chance. They quickly corrected the mistake in wordage, but the damage was done. Gorsuch’s mistaken citation of what chemical played a role in their deliberations illuminated the lie behind his ruling. The Supreme Court never imagined for a moment that they are competent arbiters of the ins and outs of the regulatory system that protects our air and water and financial and physical health. All that these six radicals on the Supreme Court want is control for themselves and relief for their billionaire backers.

The very next day, Justice Roberts wrote the decision overturning the so-called Chevron doctrine from a long-settled case that gave the EPA and other regulating authorities the benefit of the doubt when questions arose about the meaning and efficacy of regulations. Roberts wrote, astonishingly, that federal agencies “have no special competence in resolving statutory ambiguities. Courts do.”

Of course they do, Justice Roberts, and the radicals in the majority just showed how much expertise and competence they have in analyzing regulations when they got the pollutant they were citing wrong in order to give the EPA one of the biggest spankings of its life. 

The only thing coherent about the Supreme Court’s decisions overturning Chevron and the good-neighbor EPA clean air regulations is its aim to constrain if not end altogether the power of the federal government to issue regulations that cost the billionaire friends of the justices big money. The court’s incoherence has the additional benefit of so confusing lower courts that they are more likely to simply rubberstamp these atrocities than they are to pick at them trying to find nuggets of reason within the decision that they can disagree with in order to loosen its reins.

The only thing coherent about the Supreme Court decision in Trump vs. United States was their goal to let him off the hook from being prosecuted for attempting to overturn the results of the 2020 election. An example of the utterly confusing way Justice Roberts wrote the decision was shown today in an interview NPR’s Morning Edition anchor, Steve Inskeep, conducted with one of Trump’s lawyers, Will Scharf. The ostensible subject was the decision by the judge in the New York case against Trump to delay the date of his sentencing until mid-September to give Trump’s attorneys time to challenge the jury’s guilty verdict because of the Supreme Court case that found Trump immune from prosecution for “official acts.” The crimes Trump was found guilty of, all 34 of them, were state crimes, and the big one, paying Stormy Daniels hush money so she would keep quiet before election day in 2016, was a crime committed before Trump even became president. So, it would seem that the Roberts decision does not apply, wouldn’t you think?

Not according to Will Scharf. His rationale for the way the Supreme Court decision applies to acts taken by Trump before he even became president was as incoherent as Roberts’ decision itself. Inskeep asked Scharf, “Why would it be an official act by the president to talk about this hush money payment that took place before his inauguration, just because he was president at the time he talked about it?” Listen to this horseshit answer: “The key allegations in that trial related to business records that were made in 2017, and crucially, there were a number of things introduced at that trial that we believe would fall under the Supreme Court’s definition of official conduct. What we’re talking about here are communications through official White House channels introduced as evidence…and that has the potential to corrupt that New York trial with official conduct that the Supreme Court has held cannot be used in a prosecution, even for private conduct.”

Inskeep then asked Scharf about Trump’s tweets, and if a president could be held responsible for defaming someone, “just because he’s president at the time?” Scharf pointed out that a “number of courts” had held that Trump’s twitter account “constitutes an official mode of communication, and the Supreme Court held quite clearly that when the president comments on matters of public concern that that can fall within the outer perimeter of the president’s responsibilities as president, and the court was quite clear that evidence of such immune acts cannot be entered, even to prove up charges relating to a president’s private conduct.”

Defamation. Really?

Inskeep then went into the “big picture” of the decision. The ruling has been interpreted, he said, as “saying a president can do anything, including, as you guys discussed in oral arguments, the president could order Seal Team Six to assassinate a political rival, and can’t be tried for it…wouldn’t the president get away with that?”

Listen to this word salad served up with Justice Roberts’ dressing: “No, absolutely not. There are powerful constitutional and legal safeguards that would keep that sort of dynamic from ever playing out.” Asked by Inskeep what they are, Scharf answered, “In that particular dynamic, the Uniform Code of Military Justice, uh, the independent obligation of lower officers to follow the law, to independently assess the legalities of the orders they are given, and just generally keeping the constitutional system of separation of powers which has safeguarded our republic from exactly that sort of scenario since the dawn of the republic, all of those come into play. The radical innovation here is the post-hoc prosecution of a former president, which has obviously never happened before, uh, in the history of our country.”

Uhhhh…huh?

This so-called Trump lawyer is trying to say that “lower officers” will save us from Trump if he tries to order an assassination by Seal Team Six because they are the ones who “have an obligation to follow the law…and just generally keeping the constitutional separation of powers.”

What the fuck does that even mean?

Inskeep, apparently doing all he could do to keep a straight face and get this asshole back on track, asked Scharf what he meant by bringing up the Uniform Code of Military Justice: “Seal Team Six is not supposed to follow an illegal order, and you are saying that even though the president could not be prosecuted later, it’s still an illegal order and they are not allowed to follow it. Is that correct?”

“That’s correct,” said Scharf calmly, “and for giving such an order, a president could obviously and swiftly be impeached and convicted and removed from office. A scenario like that has never played out in American history, which is that we have powerful constitutional checks in place to keep a president from committing those sorts of dastardly acts…again, the radical innovation here is the attempt to prosecute a president for his official conduct after he leaves office.”

I wish Inskeep had asked him how well those constitutional checks worked when Trump was impeached but not convicted by Republicans for inciting the insurrection that attempted to overturn the peaceful transition of power in 2021, but maybe that’s a question for Scharf for another time.

Inskeep did give Scharf one last chance to reenter some weakened sense of everyone else’s reality. He asked Scharf what would happen if a president went to the Department of Justice and told them that he is “absolutely immune from this discussion, and I am telling you to do something, and it’s obviously not a crime because I’ve told you that I am immune. Why wouldn’t that prevail?”

Scharf answered, “First of all, we believe that immunity is core to the constitutional separation of powers, we believe that this is a doctrine that has essentially existed since the ratification of the Constitution, since the American Republic came into being as it’s currently constituted. This has never been a problem before in American history, and we don’t see that arising in the future. All the Supreme Court did here was recognize a system that we believe naturally follows from the Constitution, from the Executive Vesting Clause of Article II, and from the separation of powers that is core to our constitutional system.”

Here’s what that blathering nincompoop was able to do with Roberts’ incoherent decision giving Donald Trump immunity from prosecution for his official acts. He performed what we used to call in the early days of computing, a “do-loop,” a nickname for an act in programing where you make the mistake of telling the computer to do the same thing in an endless loop. In the case of Donald Trump’s immunity, the do-loop is—John Roberts has said Trump is immune, and he can do anything he wants, and he can immunize anyone he gives an illegal order to, and lower people down the chain will keep him from doing the worst things, and the beauty thing is that the “core” constitutional powers protects us all, but by the way, you can’t engage in so-called post-hoc prosecution of Trump because John Roberts says you can’t. Perfect, eh? 

And didn’t you love how he noted that all of this comes from the American system “as it is currently constituted.” Leaving open, of course, the possibility that there is another system of government somewhere out there that we might want to bring into being with even more powers than even John Roberts gave our guy.

This is what incoherence does: it opens the door to possibilities that are intentionally hidden by the maker of the incoherence, or to possibilities than cannot be foreseen right now, by us, but might be formulated at some future date by some future authoritarian whom the court has enabled by the incoherence that was just put on the table. 

The Roberts immunity decision is like a general telling an army to just go out there and run around in the dark until you find something to shoot at, and if it turns out you kill an innocent civilian instead of an enemy combatant, don’t worry, we’ll take care of it for you because we’ll say it all happened in the fog of war.

This Supreme Court is a fucking fog machine, issuing decisions that are intended to obscure what is behind them. This is an all-out attempt to drive this country into authoritarianism with the Supreme Court authoring the system, enabling future presidents to serially commit crimes, and sitting there ready to make new rules to run their corrupt system when needed. 

The right wing has wanted this for years, and now they have it. They stripped women of the right to control their own bodies and left them victimized by system of state-by-state rules that are themselves incoherent because there is no guiding principle once you take away a right that had been guaranteed by the Constitution. 

Every legal expert who has commented on the Roberts immunity decision has pointed out that immunizing a president is found nowhere in the Constitution. In the common legal phrase, Roberts made it up out of whole cloth. He created a new class of American citizens with a population of one, the president, and gave him powers not found in the Constitution, greater powers than any president has ever had.

What is to keep Roberts and the other right-wing radicals on the court from creating another class of immunized and super-powered people, like say, the police, or maybe elected sheriffs, who cannot be sued or prosecuted for anything they do in the course of what they say is their official duties. Fabricate evidence? Immune. Beat a prisoner? Immune. Kill a prisoner by kneeling on his neck? Immune. Arrest someone without a warrant, arrest them in fact in retaliation for something they said about the cops, like calling them pigs? Immune. Stick innocent people in jail in pretrial detention because you know they can’t make bail? Immune.

This isn’t a lid coming off a pandora’s box. It’s a plot, and it’s an evil one. They have already stripped the First Amendment of some of its protections of freedom of religion. They’re about the take away the First Amendment’s traditional guarantee of freedom from religion. Mandatory Ten Commandments, anyone?

What’s next? Freedom of speech, that’s what. Then they’ll overturn Brown vs. Board of Education and bring back Plessy v. Ferguson. Birthright citizenship is already in their sights. Could Dred Scott be far behind? They could have plans for a Supreme Court decision that would allow a future government of the United States to pick and choose who among current citizens will remain citizens after new rules of citizenship are imposed and enforced. They could do it by color of skin, by sexual identity, by gender identity, by national origin, by any criteria they choose.

If it sounds like a fascist conspiracy, it is. Be afraid. Be very, very afraid. With the Dobbs decision and this week’s move to grant Trump immunity, this Supreme Court is mid-stride on its way to bringing about the end of our democracy.