As Justice Sonia Sotomayor noted in a blistering dissent:
"The majority ignores . . . that the Impeachment Judgment Clause cuts against its own position. That Clause presumes the availability of criminal process as a backstop by establishing that an official impeached and convicted by the Senate 'shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law' . . . . That Clause clearly contemplates that a former President may be subject to criminal prosecution for the same conduct that resulted (or could have resulted) in an impeachment judgment-- including conduct such as 'Bribery.'"
4. As always, Clarence Thomas pushes the envelope.Not content with joining Roberts' majority opinion, Justice Clarence Thomas added a concurrence in which he called on his bench-mates to declare the Department of Justice's special counsel regulations unconstitutional.
The regulations were put into effect by the DOJ in 1999 to fill a void left by Congress's decision to allow a federal statute for appointing "independent counsels" to expire. The regulations have been upheld by two federal appellate courts-- the D.C. Circuit in 2019 with regard to the appointment of Robert Mueller, and the Third Circuit with regard to the appointment of Robert Hur to investigate Hunter Biden. The Supreme Court, however, has yet to review the regulations.
Thomas's concurrence is seen by some commentators as an open invitation to Federal District Court Judge Aileen Cannon, who is overseeing the Mar-a-Lago documents case against Trump, to overturn the regulations and set up a test case to come before the Supreme Court. Cannon is currently entertaining a motion from Trump's legal team to do just that. In the meantime, the case remains stalled with no date set for trial.
5. The opinion exposes originalism as a result-oriented sham.The reactionary supermajority that controls the Supreme Court has embraced originalism-- the view that the Constitution should be understood today as it was understood during the founding era-- as an article of faith and practice. Proponents of originalism assert that the doctrine limits the subjectivity of judges and acts as a restraint on judicial activism.
Trump v. United States proves once and for all that originalism is a sham. Nowhere does the text of the Constitution provide for Presidential immunity from criminal prosecution. Nor does a faithful reading of the seminal treatises of the founding era lead to such an outrageous conclusion.
In the Federalist Papers, Alexander Hamilton wrote that Presidents in the newly minted republic would not have unlimited power but could, if need be, be prosecuted in the ordinary course of law. The overriding purpose of the revolution was to free a fledgling democracy from the clutches of absolute monarchy and to enshrine the principle that no one is above the law. To their everlasting shame, John Roberts and his collaborators would have us forget this purpose entirely.
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