A Judicial Counterrevolution
By Bruce Fein
A judicial counterrevolution against the American Revolution unfolded on July 1, 2024.
As earthshaking as Napoleon’s 18th of Brumaire counterrevolution against the French Revolution. American citizens have no rights that the President of the United States is bound to respect.
The United States Supreme Court summoned into being from atextual penumbras and emanations of the United States Constitution in Trump v. United States virtual absolute presidential immunity from prosecutions for crimes perpetrated during incumbency. “The King can do no wrong” doctrine of British Empire, which provoked the War of Independence. has now become enshrined in the Constitution via the Court’s extraconstitutional edict which Congress is powerless to overrule. The presidential immunity shield manufactured by the 6-3 majority is not even discernable in the Constitution’s subtext.
The Constitution references immunity only for Members of Congress. Supreme Court Justices and the President are conspicuously excluded. That is why every judicial decision prior to the Trump counterrevolution emphatically rejected presidential immunity. For good reason. These are the words of the Supreme Court in United States v. Lee (1882):
“No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All offices of the government from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of authority which it gives.”
Thomas Paine, voice of the American Revolution, thundered in Common Sense, “For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.”
Who knew the clairvoyance of constitutionally illiterate Donald Trump when he proclaimed on July 23, 2019, “Then I have Article 2, where I have the right to do anything I want as president?” Who knew that President Gerald Ford’s pardon of former President Richard Nixon was gratuitous because the latter commanded constitutional immunity for his obstruction of justice crimes in the Watergate cover-up scandal perpetrated in the Oval Office, for example, counseling H.R. Haldeman to commit perjury before a grand jury and asking CIA Director Richard Helms to concoct a national security reason to thwart tracing monies paid to the Watergate burglars? Who knew of Mr. Nixon’s prescience when he insisted to British journalist David Frost in 1977, “[W]hen the president does it, that means that it is not illegal.”
Chief Justice John Roberts, writing for the majority in Trump, adamantly refused to identify a single act of a president that would be denied immunity. Thus, the majority did not dispute Justice Sonia Sotomayor’s biting dissent. The President, “Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune.” Other appalling examples come to mind. The President establishes extermination camps for his political opponents? Immune. The President initiates nuclear war against China without a congressional declaration? Immune. The President orders dragnet, warrantless surveillance of the entire American citizenry? Immune. The President bribes the Attorney General to seek an indictment against a political rival? Immune.
In its eagerness to coronate the President, the Trump majority the Court created a monster that will return to destroy the Supreme Court itself. According to the majority opinion of Chief Justice Roberts, the President with immunity could fabricate allegations of criminality against the Justices themselves and have them arrested and imprisoned by the Attorney General to destroy an independent judiciary and judicial review. An exaggeration? You decide. Here are the Chief Justice’s words, “The Executive Branch has ‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute.” As an example of immunity, the Chief Justice referenced President Trump’s persistent badgering the Acting Attorney General to pursue baseless claims of electoral fraud.
The Chief Justice’s suggestion that presumptive presidential immunity theoretically might be rebutted by the government is a snare and a delusion. To overcome the presumptive immunity, the Chief Justice instructed, the government must show that the prosecution would pose “no dangers of intrusion on the authority and functions of the Executive Branch.” But he scampered away from hypothesizing a single prosecution that would overcome the presumption of immunity.
Consider President Trump’s repeated bullying Vice President Mike Pence not to count state-certified electoral votes contrary the Twelfth Amendment and more than two centuries of uniform practice. Mr. Pence has recounted that on the morning of January 6, 2021, “President Trump demanded that [Pence] choose between him and the Constitution.”
Search the Constitution high and low, including penumbras, emanations, and subtexts. There is not a single syllable or clue that the President possesses any constitutional role in the Vice President’s counting of state-certified electoral votes before Congress. Yet the Chief Justice declared that Trump’s extraconstitutional bullying of the Vice President to defeat or corrupt the outcome of the 2020 presidential election commanded presumptive immunity as an official presidential act despite its unmooring from the Constitution. Thus, President Trump could stand in the middle of 5th Avenue and shoot somebody without forfeiting immunity.
The law reflects power, not vice versa.
The seeds of the Trump judicial counterrevolution were planted more than a century ago with the Spanish American War as 1900 approached.
The United States was born celebrating liberty and justice and renouncing Empire. James Madison, father of the Constitution, elaborated in Federalist 51, “Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.” Secretary of State John Qunicy Adams added in his July 4, 1821, address to Congress, “[America’s] glory is not dominion, but liberty. Her march is the march of the mind.” President Abraham Lincoln’s Gettysburg Address understood that America was “conceived in liberty.”
But as the nation grew militarily and economically from a tiny acorn into a mighty oak, it struck a Faustian bargain to swap liberty, justice, and the march of the mind for power, domination, and the armored knight. The Spanish American War, fueled by the lie that Spain had destroyed the USS Maine in Havana harbor, served as a pretext to conquer the Philippines and to crush the Filipinos’ right to self-determination. We deceived ourselves into believing we were God’s new chosen people blessed with infinite wisdom and angelic DNA.
Chronic military interventions in Latin America ensued, for example, Mexico, Haiti, the Dominican Republic, and Nicaragua.
World War I was fought to expand the British and French Empires and entrench White supremacy at home. Freedom of speech was ruthlessly suppressed under a national security banner.
World War II witnessed racist concentration camps for 120,000 Japanese Americans amidst bogus claims of national security. Assistant Secretary of War, John McCloy, cynically remarked, “If it is a question of the safety of the country (and) the constitution … why, the Constitution is just a scrap of paper to me.” Thereafter, Presidents launched unconstitutional wars in Korea, Vietnam, Panama, Kuwait, Serbia, Afghanistan, Iraq, Somalia, Libya, Yemen, and international terrorism everywhere in the world and forever.
Secretary of State Madeleine Albright boasted, “But if we have to use force, it is because we are America; we are the indispensable nation.” Secretary of State Hillary Clinton, in the manner of Julius Caesar, cackled after the overthrow of Libya’s Muammar Gaddafi, “We came, we saw, he died.”
After 9/11, the President asserted limitless power without pushback to play prosecutor, judge, jury, and executioner to kill any person on the planet, including American citizens, based on secret speculation that the target was or could become a national security threat. The President also undertook dragnet, warrantless, suspicionless surveillance of the entire American population under a national security banner.
Empires require a Caesar. A Caesar requires limitless power. Thus, the Trump majority repeatedly swooned over Presidents fearless in bestriding the nation and the world like a colossus taking a wrecking ball to the rule of law.
In sum, ultimate responsibility for the Trump counterrevolution lies with the Republican and Democratic Parties and the American people for opting for an Empire and presidential lawlessness over a Republic and the rule of law. You reap what you sow.