By Kelly Sloan | Special Contributor
A fortnight ago, on CBS’s Sunday morning show “Meet the Press”, one of the guests interviewed was Doris Kearns Goodwin, Presidential historian, author of “Team of Rivals” and former staffer for President Lyndon Johnson.
Mrs. Goodwin is a frequent guest of the show and, while unabashedly Democratic, often brings up some interesting points, as befitting her role as historian. On this episode, the conversation turned, naturally, to the pending threats to American Democracy – meaning, of course, Donald Trump.
Goodwin expressed concern, as all good Democrats do, that the former President would, again, not accept the results of the upcoming election, and how deleterious an impact that could have on America’s political foundations. Fair enough. Not the first nor last we will hear of that. But like nearly every other interview seen on this particular topic, one rather important question and its attendant corollaries are glossed over, or ignored completely: What if Trump legitimately wins the election this time? What do they think that will say about American Democracy? Will democracy-loving Democrats accept the victory of one whom they consider such a threat to democracy?
The entire line of questioning, of course, is political, hence the political framing, and the political answers. But it raises the very valid point that most of these contemporary political questions that generate headlines, fill airspace, and provide fodder for social media posts cut both ways. This ties in neatly with the Supreme Court’s hearing of arguments last week as to the issue of Trump’s immunity from prosecution for official acts performed as President.
The tilt of the official questioning from many of the Justices during the hearing indicated that they are taking their job seriously – i.e., considering the implications of their decisions well beyond the fortunes of one Donald J. Trump. In looking at this issue, the Court is grappling with several questions: Does a President have absolute immunity for actions performed in his/her official capacity? What does “official capacity” entail? To what extent does that immunity reach? And so on. It is an area of constitutional law that not been sufficiently examined, and it falls upon this Court to figure out how those questions are addressed – for this President, and the next, and all who come after. Justice Neil Gorsuch put it best when he said, “We are writing a rule for the ages.”
Indeed. It is difficult, and unwise, to underestimate the importance of what the Court is weighing here. The question has been insufficiently examined, because it has traditionally been unnecessary. Richard Nixon allowed the country to dodge the question when he resigned, and President Ford did the same when he pardoned Nixon; who in any case was impeached for what he did, the traditional constitutional remedy for wrongdoing by a President. But even that mechanism has proven exceedingly unfamiliar to those who have tried to wield it, so seldom has it been called up in this nation’s history. And, perhaps due to that unfamiliarity, it has now been politicized by both sides to such an extent as to render it impotent. In other words, the Court is embarking on rather momentous constitutional ground here.
It is at moments like this that one can be grateful for the tutelage of Chief Justice John Roberts, ever mindful as he is about the High Court’s institutional responsibilities. In their questioning during the hearing, he and several Justices were entirely correct in being skeptical of overt political applications of the presented arguments, and cognizant of the enduring impact. On one hand, there is the realization that to not grant the Chief Executive a latitudinarian degree of immunity would be cripplingly disruptive to the effective operation of the office, infecting future Presidents with a catabolic nervousness in the exercise of their duties. On the other hand, is the evident need to establish defined limits to that immunity, as the failure of which to do so would seem to invite corruption.
The response from the left to the Court’s generational approach is predicably myopic. The headline of a column by Jamelle Bouie in the New York Times offers a typical example: “Justice Alito Is Holding Trump to a Different Standard.” Or as The Atlantic’s Adam Serwer writes, “Pretending that these matters concern the powers of the presidency more broadly is merely the path the justices sympathetic to Trump have chosen to take in order to rationalize protecting the man they would prefer to be the next president.”
It would be good for liberal journalists like Bouie and Serwer to every now and then reflect that not everything is about Trump. Nor is it always about the next six months, or the next year, or the next four years. That at least some of our Supreme Court Justices understand this offers a glimmer of hope for the future of the Republic.
Editor’s note: Opinions expressed in commentary pieces are those of the author and do not necessarily reflect the opinions of the management of the Rocky Mountain Voice, but even so we support the constitutional right of the author to express those opinions.