Samuel Alito Has a Very Strange Theory for How to Protect Democracy

https://www.motherjones.com/politics/2024/04/samuel-alito-supreme-court-trump-immunity/

On Thursday, the Supreme Court held oral arguments over former President Donald Trump’s claims that he enjoys absolute immunity from criminal prosecution for engaging in what he contends were his official duties while in office. And one justice, Samuel Alito, offered a particularly wild theory about how to preserve American democracy and the rule of law.

The case centers on whether special counsel Jack Smith’s indictment of Trump for trying to overturn the 2020 election can proceed or whether—as Trump contends—he is above the law when it comes to his conduct leading up to the January 6 insurrection. Much of Thursday’s hearing revolved around a debate over which of two possibilities poses a greater threat to American self-government: that defeated presidents might fear prosecution by vindictive political enemies upon leaving office, or that sitting presidents—secure in the knowledge that their legal misdeeds cannot be punished—might rein with impunity. Based on their questions, it seems possible that a majority of the justices prefer the latter. At the very least, the court appeared likely to rule in a way that would immunize at least some of Trump’s efforts to steal the presidency, an outcome that could delay his trial until after the 2024 election, if it happens all.

During oral arguments, several Republican-appointed justices expressed concern that without immunity, former presidents might suddenly begin to face criminal prosecution with regularity. But Alito took this entirely hypothetical concern to an absurd conclusion: He worried that if presidents believed theirs successors could prosecute them, they might refuse to leave office peacefully when they lose reelection. Put another way, presidents need immunity from prosecution in order to encourage them to accept electoral defeat and preserve American democracy.

Considering that this entire case is about a president who sought to illegally remain in office—and whose supporters staged a violent insurrection to help him do just that—this was a stunning argument to make. In Alito’s own words:

I’m sure you would agree with me that a stable democratic society requires that a candidate who loses an election, even a close one, even a hotly contested one, leave office peacefully, if that candidate is an incumbent? All right. Now if an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement, but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy? And we can look around the world and find countries where we have seen this process where the loser gets thrown in jail.

*snip*