I’m sure that this isn’t what New York Judge Juan Merchan had in mind, but he may have done Donald Trump a very big favor, nearly as big a favor as the conservative U.S. Supreme Court justices seem prepared to offer him.
If you’ll recall, Trump very much wanted to attend the Supreme Court hearing that was held Thursday to consider his much-derided claim of blanket presidential immunity.
But Merchan — the judge in the case Trump is currently facing in New York for paying hush money to a porn star and then allegedly fixing the books to hide the payout — wouldn’t allow it.
He ruled that Trump, like every other criminal defendant, was pretty much expected to show up for trial every day. As we know, many criminal defendants, particularly the less wealthy ones, are asked to retreat to jail each day after trial instead of, say, to a motorcade heading to Trump Tower.
But what if Merchan, who is constantly slammed by Trump as corrupt and worse, had ruled that Trump could go?
If Trump had attended the Supreme Court hearing, the justices might have remembered that the case before them was actually about Trump and his attempt — I’m not going to use “alleged” here — to overturn the 2020 election.
If Trump had attended the hearing, the justices might have been reminded of the stakes involved in the case, which should be called Trump v. American democracy.
If Trump had attended the hearing, a majority of justices might have understood their obligation to rule and rule quickly so that American citizens could have the benefit of knowing whether the person they might be voting for — and who is already the presumptive GOP presidential candidate — was guilty of basically attempting a coup, with the help of the, uh, J6 “hostages.”
Want early access to
Mike’s columns?
Subscribe to get an
exclusive first look at
his columns twice a week.
But no. In a nearly three-hour hearing, the conservative justices barely mentioned Trump at all. It may be one the few places in America in recent days (and months and years) where that was true.
They worried, instead, about the fate of future hypothetical presidents who might someday be hounded by their political opponents upon leaving office. In other words, as one writer suggested, the court was more concerned about a “dystopian” future than about our, uh, “dystopian” present.
There wasn’t much time spent on the indecent particulars of the Trump-inspired January 6 Capitol assault or on the equally indecent Trump scheme to nominate fake electors or on Trump’s attempts to intimidate public officials. The question, instead, was whether a president needs immunity for his term in office to be protected from a rogue successor, and which acts — private and/or official — should be considered.
Trump’s lawyer, John Sauer, wasn’t shy about saying what he thought should be protected. He argued that a president would be acting in his official capacity if he sent the military to, say, assassinate his political opponent or if he were to sell nuclear secrets. Without such protection, Sauer said, “there can be no presidency as we know it.”
At the same time, Sauer admitted some of Trump’s more egregious acts might be private.
Meanwhile, Chief Justice John Roberts suggested that it wasn’t at all clear what presidential actions might be covered and suggested that the case go back to a lower court to figure it all out.
Of course, the court could just rule on what presidential acts committed by Donald Trump would be covered. Conservative Justice Amy Coney Barrett did suggest that, but I’m not sure anyone was listening.
In any case, you can expect more delay for a trial that was scheduled to begin in March. And that kind of delay is just what Trump was after.
☀️ MORE FROM MIKE LITTWIN
I‘m not sure what some of the justices were after. In one memorable dialogue, Justice Sam Alito asked Michael Dreeben, who is representing special counsel Jack Smith, whether he agreed that “a stable democratic society” requires that a president, after losing a “hotly contested” election, leave office peacefully.
Dreeben, not surprisingly, agreed that it would be better.
And then Alito asked him this:
“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?”
In other words, might that president, if he didn’t have immunity, be tempted to try to overturn an election?
Dreeben countered — in my words, not Dreeben’s — that Alito must be living in a bizarro world. Where’s the real danger, after all?
Alito seemed to miss the point that a most unhypothetical president without immunity was already tempted to overturn a not-so-long-ago election and remain in office, possibly forever.
I think we might remember one such case.
It’s the case without porn stars, the Trump case that haunts America. Today. In the here and now.
If Trump had been allowed to show up at the hearing, maybe the justices would have remembered, too.
Mike Littwin has been a columnist for too many years to count. He has covered Dr. J, four presidential inaugurations, six national conventions and countless brain-numbing speeches in the New Hampshire and Iowa snow. Sign up for Mike’s newsletter.
The Colorado Sun is a nonpartisan news organization, and the opinions of columnists and editorial writers do not reflect the opinions of the newsroom. Read our ethics policy for more on The Sun’s opinion policy. Learn how to submit a column. Reach the opinion editor at opinion@coloradosun.com.
Follow Colorado Sun Opinion on Facebook.