Alito Is A Fraud Who Refuses To Acknowledge The Real Danger
Trump did not try to overthrow the government because he was afraid of punishment, but because he did not want to lose power
Are presidents immune from prosecution for official conduct? Where the line is between official conduct and private action?
Justice Samuel Alito — the most dangerous Trump appointee on the supreme court (he wrote the Dobbs decision, striking against women’s right of self-ownership) – is hinting that he will take the position that presidents should have immunity because if they don’t, they will not behave well.
Alito alleges that if presidents know they will be prosecuted for a crime while in office, they will attempt to stay in office. So we should not prosecute them.
Punishment = Worse crime.
Ergo: do not punish.
There may be some truth in that…as a parallel situation, if Netanyahu knows he will be voted out of Israeli when the war ends, then the war will not end.
The Alito argument is not just totally absurd, it is a distraction from what is really happening: Carrot-head tried to overthrow the democracy of the U.S. This is not about a future abstract.
We can get rid of Alito’s ‘need to reduce the fear of punishment’ argument by pointing out that Richard Nixon arranged for a personal pardon without having to go through the wrenching displacement of enshrining the right to commit a punishment-free crime in the constitution, like Alito and crowd seem to feel is needed.
In fact, in the 236 years since the Constitution was signed, 10 presidents have sought but lost re-election. In all cases, the defeated candidates acknowledged their loss and left office without incident.
All but one.
To quote a nice summary by reporter Ray Brescia: “…no president, other than Nixon, has been credibly accused of committing any crime while in office, let alone the crime of trying to subvert the results of an election and remain in office… But that’s not how at least several of the justices appear to see the world. Down is up. Right is wrong. It’s better to imagine what some future president might one day do to stay in office than hold the person who actually tried to stay in office accountable for his actions.”
If Alito was well-read and had any sense of history he would know that the crimes of a power-mad president do not happen because he is threatened with prosecution, but because he is threatened with a loss of power!
Trump attempted to stay in office long before he knew he would be prosecuted…in fact, more than two years before he was prosecuted.
He attempted to stay in office purely because it was “his” office.
Trump tried to overthrow the democratic process with a mob on January 6th, 2021.
More than two years passed before he faced the four indictments.
Why is no one in the regular media pointing this out?
Here is when the indictments happened:
April 4, 2023: Indictment for suppressing information about payments made to two ladies of negotiable virtue;
June 8, 2023: Indictment for classified documents taken from the White House in Washington to his White Bathroom in Florida;
August 1, 2023: Indictment for a scheme to appoint fraudulent electors to mimic real electors;
August 14, 2023: Indictment for trying to re-jig Georgia’s election results by “finding” votes.
Alito is saying something dangerously wrong: he is not only saying that we should be afraid of prosecuting someone because of what they might do to stay in office, he is using that as a screen to refuse to acknowledge that power itself is the magnet that makes them do criminal acts. The possibility of being held accountable is not in their tiny minds at all.
It does not figure into the equations of the power-hungry.
Further, we should in principle not set up a law just because we are afraid that it will push someone into illegal action. The punishments should be specified so clearly that the crime becomes too risky for the reward.
If we set up the rules because we are afraid of what the criminal might do if they are unhappy with the rules, then we might as well have no rules. The criminals, in effect, would be writing the law texts.
What he is doing is narrowing the ability of the people to limit the power of the executive.
What is wrong with Alito, that he would even advance a backwards argument like that?
It seems to me - based on the fuddled wording of his previous decisions – that he knows what he is doing and is searching for a rationale.
This applies to all of the six Catholics in the supreme court majority: Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. Their decision that Roe vs Wade was unconstitutional was made on terrible legal grounds. Some 80 per cent of the country disagrees violently with that notion, but they don’t care. Their message, essentially, is “suck it up.”
Trump’s court said that any measure that was not specifically listed in the Constitution was illegal. It invented doctrine to keep the American government malformed and undeveloped. It forced its own theory of freedom down Congress’s throat. This is a big departure from FDR’s New Deal, which he rammed through a recalcitrant court by threatening to expand the court and get his verdict. They immediately backed down.
Now Trump’s court has stopped ANY UNENUMERATED fundamental rights. Nothing more may be poured in the cup.
Liberty to them is not a core feature of our constitutional heritage. It could, they say “have hundreds of possible meanings”. We should not, they advise, “recognize rights not mentioned in the Constitution.”
This flies in the face of the intention of the Founders. One of America’s Founders spoke gently against the infallibility of Justices and Priests; Benjamin Franklin acknowledged that the world changes and these changes call for revisions.
He was a proto-scientist, or course, so that was his world view. As it was also the world view of most of his fellow Founders, who were learned philosophers who rejected religion as the guiding force for America. “The government of the United States is not in any sense founded on the Christian religion…” stated George Washington. Can’t get any plainer than that.
Many MAGA types are shocked to be told that the word ‘God’ is not mentioned in the Constitution.
The only two references to religion that are in the Constitution actually cut religion out: the First Amendment says, “Congress shall make no law respecting an establishment of religion. . .” and in Article VI, Section III, “… no religious test shall ever be required as a qualification to any office or public trust under the United States.”
But the Supreme Court Justices are Popes in their own church.
According to them, only centuries-old historical evidence could possibly justify the protection of an unenumerated fundamental right. They pretend they can divine the original ideas of some dead white men. If those ideas are in conflict with what the Justices want to prove, they will be discarded anyway.
Roe v. Wade, of course, is not in the Constitution. Neither is the right of people of different races, or of the same sex, to marry, or to use contraceptives, or in fact to be a free person if you happen to be Black.
BUT IN FACT when the Founders added the Bill of Rights to the Constitution in 1789, it was understood that no list of protected rights could possibly be exhaustive. As future Supreme Court Justice James Iredell observed, “Let any one make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it.”
The cup of liberty was intended to be as large as the future needed.
But the Justices are actually poorly-read, barely literate people when it comes to history.
The Roe interpretation used by the Court in June of 2022 says that if something is not in the Constitution it must have been deliberately omitted. This literally defies history, intent and the meaning of the Constitution.
Recall at the time of the Roe ruling that the Justices were morally bankrupt. They lied to get onto the Court, and the public knew it.
The hypocrisy of these people is staggering. Justice Thomas took the lead in fighting against Affirmative Action, a program he himself used in his climb. In 1971 he was admitted to Yale's Law School as part of the affirmative action program.
This is scripted Republican behavior. Every government shut-down in the last 30 years occurred when Republicans controlled the House. Last time, it drove people to food banks and forced an $8-billion hit to the economy. But they don’t care…there are plenty of snacks in the fridges in the limos.
Roberts and Alito own stock in 19 companies that are poised to receive a combined $30 billion in tax breaks if the judges strike down the 2017 law's mandatory repatriation tax, a one-time levy targeting earnings that multinational corporations had piled up overseas.
If they strike it down, the Manhattan Institute warns, "the Roberts Court could decide with the stroke of a pen to simultaneously forgive big business decades of tax dues, increase the federal deficit over the long run, jeopardize future public revenue and essential social programs, escalate these multinational companies' already sizeable after-tax profits, and further enrich their shareholders."
Any social group that blocks change with such nonsense is inviting revolution as the only method of letting the people be heard.
As Jeff Tiedrich said of the Founding Fathers: “…they didn’t anticipate an entire political party lining up behind an amoral fascist, and they sure as fuck couldn’t imagine a corrupt Supreme Court twisting the law into pretzels to help an 88-count crime factory escape accountability forever.”
All of the above is not to wander from the ‘presidential immunity’ question, but to put it in context. At the same time as they are restricting American citizens from reproductive rights and social opportunities, they will not restrict the leader of the wealthy class – they will take away the threat of prosecution.
So in their view, a president should be perfectly within his rights to call down a mob on the legislative house, even if the populace sees him as a sleezy dangerous wingnut.
For Trump, just getting the argument in front of SCOTUS has been a victory. It further diminishes his odds of facing a jury on the stolen-election charges, before the November election.
But the other catch is this: if the court can persuade itself that it is trying to write the law “for all the ages”, as it says, then its decision on immunity will be flawed. History is a living thing; laws and perceptions need to be responsive to social progress. There is no law “for all the ages”. If they are trying to refine the kinds of actions that presidents can take regarding immunity in coming decades, they are in for a losing ride. Make it official and binary: there are no acts that should be considered ‘beyond the law’.
If a president is operating so close to a moral line that a court decision is needed, he has already over-stepped it.
Case closed.
To everyone, thank you for reading Barry’s Substack.
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This is nothing more than the ultimate result of neo-liberalism, where everything - including the Supreme Court - is subject only to market forces; no other values matter. In this case, the wealthy are investing in the judicial system for their continued profiteering.