The Republican Justices Do Not Want to Talk About Donald Trump's Coup Attempt [View all]
Balls & Strikes
On Thursday, the Supreme Court convened for its final oral argument of the term, ostensibly to decide whether a President Donald Trump can be criminally prosecuted for his efforts to overturn the 2020 election. In all likelihood,
Trump v. United Statesboth the cases name and also an apt description of U.S. politics right nowis the last chance to prosecute Trump between now and November, when Americans return to the polls to decide if a guy who once tried to overthrow the government is worthy of leading it.
If, however, you were unfamiliar with the particulars of the January 6 insurrection and Trumps role in facilitating the events that led to it, the bulk of oral argument would have felt dry, boring, and academic. Throughout, the Republican justices worked diligently to frame the case as a series of abstractionsas fodder for an erudite discussion of constitutional theory that only tangentially and coincidentally implicates the electoral future of their preferred candidate. The calculus was pretty simple: The more time they spend discussing things that are not Donald Trumps real-world criminality, the less attention Donald Trumps real-world criminality gets.
A Department of Justice-appointed special counsel has charged Trump with, among other things, conspiracy to defraud the United States. The statutory language is pretty broad, but as the governments lawyer, Michael Dreeben, explained to the Court on Thursday, the law is designed to protect the functions of the federal government. Its difficult to think of a more critical function than the certification of who won the election, Dreeben said.
Yet even this oblique reference to what Trump actually did was too much for Justice Samuel Alito, who quickly jumped in. As I said, Im not talking about the particular facts of this case, he told Dreeben. Instead, Alito spent much of his allotted time discussing the outer limits of presidential criminality, repeatedly invoking the dangers of a too-lenient test that could allow bad-faith prosecutors to bring groundless actions against hypothetical ex-presidents at some undefined point in the future.