Vol. 52: Trump’s last judgment

The Supreme Court contemplates You-Know-Who

“New Trump Cases Shadowed by Rocky Relationship With Supreme Court”
—New York Times headline, December 21.
“The Supreme Court’s Big Trump Test Is Here”
—New York Times op-ed page headline, December 28.

        A law clerk at the Supreme Court recently leaked me the preliminary draft of a proposed majority opinion currently being circulated among the justices for delivery in late 2024 or early 2025. I am sharing it here. — DR       

The case before this Court is both unique and complex. The petitioner, Donald John Trump of Palm Beach, Florida, formerly of New York and Queens, is a former U.S. President who has been convicted in multiple federal and state courts of multiple criminal and civil offenses, including inciting an insurrection, conspiracy to overturn an election, mishandling classified documents, falsifying business records, fraud, tax evasion, perjury, contempt of court, violation of campaign finance laws, rape, defamation, adultery, and just generally being a pain in the ass throughout his adult life. The penalties imposed upon the petitioner for these various offenses include execution, life imprisonment, forfeiture of his business assets, exile to a shithole country, castration, and six months’ community service plus court costs.

         The petitioner seeks the Court’s judgment as to which of these penalties, if any, should take precedence over the others. At the same time, the petitioner seeks relief from all of these verdicts on the ground that (a) he’s done nothing wrong, (b) if he did do something wrong, he enjoys total criminal immunity for any actions taken while he was President, (c) the cases against him were politically motivated; (d) the judges, prosecutors, and jurors were biased, (e) the witnesses who testified against him are liars; (f) any criminal actions taken by the petitioner’s lawyers were made without his knowledge or direction, which is why he  hasn’t paid them; (g) these prosecutions have interfered with his re-election campaign for the presidency, to the detriment of enlightened public discourse; and (h) being a pain the ass is not defined as criminal activity under any of the various state and federal statutes.

Convicted but re-elected

         These considerations are further complicated by the fact that, notwithstanding his various criminal convictions, on November 5, 2024, the petitioner was re-elected President of the United States by the Electoral College (although not by popular vote), for a four-year term to commence on January 20, 2025. The petitioner therefore also seeks reversal of his convictions on the ground that his ability to carry out the presidential duties to which he was elected would be impeded if he were required to perform them from prison, exile, or Death Row. The petitioner further argues that such impediments would deprive his constituents of the leadership which they are legitimately entitled to choose under the Constitution.

         Precedent on this matter, like so much else in this case, is uncertain. This Court is aware that Eugene V. Debs campaigned for president in 1920 while serving a prison sentence for sedition. But until now, no U.S. Court has been required to contemplate the prospect of a U.S. President carrying out the duties of that office while incarcerated or exiled.

         As a further complication, the petitioner’s constituents, who may constitute a majority of the voting population, are unlikely to respect a ruling of this Court if they disagree with it. The potential for violence to this Court itself cannot be ruled out, unless, of course, the Court agrees with the petitioner’s constituents. The legal system cannot hold a defendant accountable for fomenting an insurrection if he continues to foment the same insurrection that he was originally found guilty of fomenting. The zeal of the petitioner’s followers suggests that any punishment imposed upon the petitioner is unlikely to be carried out— short of the death penalty, which, once imposed, even the petitioner’s constituents cannot reverse.

Death penalty or insanity?

         As to the death penalty: Under commonly accepted standards of Western jurisprudence, punishment serves at least one of these purposes: (1) to remove dangerous individuals from society; (2) to deter potential criminals from committing crimes; and (3) to rehabilitate criminals so they may productively return to society. The death penalty, once widely regarded as an effective solution to options (1) and (2), has more recently been perceived in many (but not all) courts as cruel and unusual punishment, and therefore prohibited by the U.S. Constitution. The case currently before this Court presents unusual difficulties in this respect, because (a) the petitioner is incapable of rehabilitation, (b) the petitioner’s unique personality renders it unlikely that any punishment meted out to him would deter anybody else; and (c) whether in prison or in exile, this particular petitioner, as long as he sucks breath, would incite his followers to overturn the legal judgments rendered against him (which indeed is one of the very crimes for which he has been convicted). For these reasons, this Court cannot rule out the possibility of capital punishment as a solution for this exceptional case.

         As an alternative to the death penalty, this Court might plausibly consider a verdict of “Not guilty by reason of insanity.” Many respected psychiatrists have already concluded (albeit from a distance) that the petitioner suffers from Narcissistic Personality Disorder. His harsh childhood treatment at the hands of his father further supports an insanity judgment. The petitioner’s failure to submit such a plea does not undermine its validity, since lunatics, by definition, rarely acknowledge that they’re lunatics. A graver concern is that many of the petitioner’s followers are as deranged as he is and might resort to violence to remove him from whatever asylum the Court chooses to place him and, further, that these same followers might legitimately elect him president in perpetuity despite an insanity finding by this Court.

A Justice’s wife

         Yet another complication in this case concerns the low standing in which this Court is presently held. A recent public opinion poll found that just 41% of Americans respect or trust this Court. This low esteem can be attributed to the Court’s lack, until this year, of an ethics code, thanks to which one Justice has received hundreds of thousands of dollars’ worth of perquisites from right-wing billionaires, such as luxury vacations, private school tuition, purchase of his mother’s house, and forgiveness of a $257,000 loan that he used to buy a recreational camper. It has also been brought to this Court’s attention that this same Justice has declined to recuse himself from this case, even though the Justice’s wife was herself involved in the petitioner’s efforts to overturn his election defeat. Since three of this Court’s Justices were nominated by the petitioner, a finding of not guilty by reason of insanity would in effect acknowledge that one-third of the Court’s Justices owe their jobs to a wacko, thereby further undermining this Court’s already precarious reputation.

         The survival of democracy depends above all upon broad public respect for society’s democratic institutions, of which this Court is surely one of the most vital. It also requires that the Justices of this Court remain free to consider the law impartially, without fear of mob pressure either in their chambers or in their personal lives. Mob rule has no place in a democracy— unless, of course, the mob is large enough to elect a President and other public officials. For that reason— and also because one of our friends has offered to take all the Justices who concur in this decision (although not the dissenters) to Cancun for a much-needed getaway vacation— this Court chooses to forego a ruling on the petitioner’s appeal and instead to return his various cases to the lower appeals courts for further review.

Enjoy Dan Rottenberg’s new memoir, The Education of a Journalist: My Seventy Years on the Frontiers of Free Speech. You can also visit his website at www.danrottenberg.com

To browse the complete archive of Dan’s past columns: Click Here!