As I predicted after the oral argument, the supposedly originalist Court ignored the text of the Constitution, all of the relevant legislative history, and case law and created law out of thin air. The Court doesn’t want to follow the will of the Founding Fathers; it wants to be the Founding Fathers. As a result, there is no chance the Trump case will go to trial before the election. The Court has put its thumb on the scale for purely partisan reasons.
But, believe it or not, that’s not the worst part of this opinion. At this point, we need to worry more about a future Trump dictatorship than the madcap attempt to overturn the 2020 election. There is plenty in this opinion that will make sure he has never held accountable for any such hypothetical future actions.
The Court correctly finds that the president has a few core powers under the Constitution which can be exercised without any meaningful review. None of them have any relevance to the facts of this case. The opinion goes on to say, however, that all other presidential actions that are plausibly official in nature are presumptively immune from prosecution, and that the presumption can only be rebutted if the intervention is not “intrusive.” That is a completely new standard, and a frightening one.
Based on the opinion, any attempts by Trump in office to, as he put it, “terminate the Constitution” will most likely be immune from prosecution if they involve communications with the AG and the military that have some plausible nexus to national security or law enforcement. The trick will be to make sure that the interactions leading to the coup only involve officials who are answerable to the president. Trump screwed up last time by involving private parties in his plotting; next time, we won’t be so lucky.