Executive Power

Betraying Trump, Kavanaugh and Gorsuch Stay Loyal to the Law

Two centuries of precedents say the president is not immune from judicial process.

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Two years ago, while fighting the confirmation of President Donald Trump's second Supreme Court nominee, Senate Minority Leader Chuck Schumer (D–N.Y.) suggested that Brett Kavanaugh would help the president escape accountability for grave misconduct. "If Kavanaugh would've let Nixon off the hook," Schumer asked, "what is he willing to do for President Trump?"

Schumer was mischaracterizing Kavanaugh's view of United States v. Nixon, the 1974 case in which the Supreme Court unanimously upheld a federal subpoena seeking White House tapes and documents as part of the Watergate investigation. Schumer's prediction was also wrong, as Kavanaugh showed last week in Trump v. Vance, another resounding victory for the rule of law.

Like Schumer, Trump seems to assume that justices will carry water for the presidents who appoint them. He reportedly was furious that Kavanaugh and his other nominee, Neil Gorsuch, had betrayed him by failing to oppose a New York grand jury subpoena seeking tax returns and other financial records from Trump's accounting firm.

Given their attitude toward judges, it is not surprising that Trump and Schumer both have earned public rebukes from Chief Justice John Roberts for politicizing the judicial branch. Trump got his in 2018 for slamming a decision against his administration as the work of an "Obama judge"; Schumer got his last March for warning Kavanaugh and Gorsuch that they would "pay the price" if they did not reach the conclusion he favored in an abortion case.

"All Members of the Court will continue to do their job, without fear or favor, from whatever quarter," Roberts said on the latter occasion. Last week's decision, which involved an investigation by Manhattan District Attorney Cyrus Vance Jr., is a striking example of such independence.

Vance, a Democratic politician in a solidly anti-Trump part of the country, is looking into hush payments received by two women who claimed to have had sexual relationships with Trump before the 2016 election. He thinks those payments may have involved violations of state law, perhaps by Trump himself.

If this case is allowed to proceed, Trump's lawyers warned, it could set off an avalanche of politically motivated investigations that would bury his presidency. The justices, while by no means dismissing that concern, rejected Trump's solution: giving the president a free pass from any sort of state criminal process until he leaves office.

"In our system of government, as this Court has often stated, no one is above the law," Kavanaugh wrote in a concurring opinion joined by Gorsuch. "That principle applies, of course, to a President."

At the same time, all of the justices conceded that courts need to make some allowance for the president's uniquely demanding duties, although they disagreed about exactly how much. Courts have been striking that balance since 1807, when Chief Justice John Marshall, while overseeing the treason trial of former Vice President Aaron Burr, upheld a subpoena seeking documents from President Thomas Jefferson for use by the defense.

The Supreme Court reinforced the principle that the president is subject to subpoena in 1974 when it required Richard Nixon to produce evidence for a criminal investigation that ultimately led to his resignation, and in 1997 when it said Bill Clinton had to answer questions in a civil lawsuit involving his behavior when he was governor of Arkansas. Both were unanimous decisions that united the president's appointees with the rest of the Court in concluding that he did not deserve the immunity he wanted.

Last week it was Trump's turn. The Court, including his two nominees, added state criminal subpoenas to the types of judicial process the president may not categorically ignore.

Citing "a person familiar with his reaction," The New York Times reported that Trump "expressed deep anger at Justices Gorsuch and Kavanaugh, seeing their votes as a betrayal." But the justices have a duty to uphold the law, not to placate Trump, and the loyalty he demands requires a betrayal we would all have cause to regret.

© Copyright 2020 by Creators Syndicate Inc.

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  1. “Trump seems to assume that justices will carry water for the presidents who appoint them. He reportedly was furious that Kavanaugh and his other nominee, Neil Gorsuch, had betrayed him”

    So basically this is a big pile of innuendo and assumption and implication used to assert opportunistic outrage.

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    2. Like you are assuming you know what the writer assumes.

      1. The writer wrote his assumptions in the article, namely the sentence quoted.

        Your reply makes no sense.

        1. Lol

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          1. Well, in his defense we all know reading comprehension is not his style.

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    5. So basically this is a big pile of innuendo and assumption and implication used to assert opportunistic outrage.

      True. And frankly, we should expect better from Mr. Sullum.

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  3. There really is a stark divide between liberal jurists and conservative jurists. Both sides are driven by ideologies and beliefs to a great extent, but the liberals are much more likely to have partisanship driving their decisions.

    Conservative justices will frequently follow their particular ideology where it leads into breaking ranks and joining the liberals. But the liberals almost never break ranks and vote with conservatives.

    You can tell that we absolutely do not have a law based judiciary because you never see nonpartisan splits – where the left-right divide is completely obliterated and half of each side votes opposite the other half. If we really had an independent and nonpartisan judiciary, this should be reasonably common in difficult cases.

    1. Conservative justices will frequently follow their particular ideology where it leads into breaking ranks and joining the liberals. But the liberals almost never break ranks and vote with conservatives.

      Is there objective evidence for that? My perception is that this may actually be true, but have never seen quantifiable data on the question.

      1. https://www.npr.org/2020/07/15/891185410/in-supreme-court-term-liberals-stuck-together-while-conservatives-appeared-fract

        There you go, fresh off the presses.

        But there are a lot of studies that show this same feature, that the liberal justices are a lot less likely to break rank.

          1. Are you really surprised? This is how the one-way ratchet is supposed to work.

            Everyone’s a libertarian until it comes to their pet cause and some people just have more pet causes than others.

    2. Judges are not politicians. If you are classifying judges as “conservative” or “liberal” then you are starting from the wrong place.

      1. I have argued the same thing. The lens is wrong (conservative or liberal).

      2. Judges are human. They have biases. Stop denying reality.

      3. Judge them by their decisions. There are progressive justices, conservative justices, and 2 libertarians.

      4. If everyone who follows the court can tell you exactly how the justices are going to decide a case based on which president appointed them, I really don’t think you have a leg to stand on with this critique.

        Sure, they should not be conservative or liberal as a label. That was kind of the point of my post. Reality disagrees with our ideals though.

    3. I think a big part of this is that pretty much every issue that makes it to the Supreme Court has a strong partisan divide to it. Things only get that far if they are politically controversial. Otherwise they tend to be settled at a much lower level. That’s why you don’t see nonpartisan splits that often.

    4. Let me guess: you prefer conservative judges because they are impartial while liberal judges are activists.

      It should be obvious that people consistently view their interpretation of the law as impartial while attributing capriciousness or whim or politics to those who interpret another way. It couldn’t possibly be that textualists and originalists both come to their decisions with honest intentions.

      It’s simultaneously sad and funny that people think they are buying a political hitman when a judge who *tends* to decide cases in line with a current political philosophy. It’s funny (and I’m sure the judges feel like it’s a feather in their cap of fairness) when a conservative judge finds for a liberal plaintiff. Political parties shift more than judicial philosophies. It’s easy to see why politicians, concerned with re-election, support laws that their current constituents (or lobbyists) support. They’re trying to keep their jobs. Judges with lifetime tenure have no mercurial constituency to placate. They just do their thing. It must be fun when they sit around drinking beer after a big decision, laughing at the idiot politicians who thought they were “owed” a favorable ruling. The independent judiciary is the last bastion of decency in American governance.

  4. Citing “a person familiar with his reaction,” The New York Times reported that Trump “expressed deep anger at Justices Gorsuch and Kavanaugh, seeing their votes as a betrayal.”

    You’re still reporting this sort of thing as if it weren’t pure bullshit?

    1. The NYT has lost all credibility. Bari Weiss:

      Twitter is not on the masthead of The New York Times. But Twitter has become its ultimate editor. As the ethics and mores of that platform have become those of the paper, the paper itself has increasingly become a kind of performance space. Stories are chosen and told in a way to satisfy the narrowest of audiences, rather than to allow a curious public to read about the world and then draw their own conclusions. I was always taught that journalists were charged with writing the first rough draft of history. Now, history itself is one more ephemeral thing molded to fit the needs of a predetermined narrative.

    2. When have anonymous sources ever been wrong!!!

    3. It is embarrassing, but expected from the nevertrumper brigade here at unreason.

    4. Do you feel that it is unlikely for Trump to have such feelings? It’s not in character or what? Truck man go choo choo?

    5. You’re shooting the messenger for delivering a message. Anyone who has watched the moron in public already knows this.

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  6. I suppose Trump is foolish to expect a conservative Justice to behave as a partisan loyalist like the Left wing justices, such as Kagan, who ruled in favor of an ACA policy she was in part responsible for implementing when she was in the executive branch, to negligible criticism.

    He should know only conservatives are expected to behave with honor and principle.

    1. It’s attitudes like this that make me happy we have an independent judiciary.

  7. Trump seems to assume that justices will carry water for the presidents who appoint them. He reportedly was furious that Kavanaugh and his other nominee, Neil Gorsuch, had betrayed him by

    According to an unnamed senior administration official speaking off-the-record on deep background, of course.

    Or rather, ‘some people I know said that they think Trump must be really mad about this and I like to think he was so that’s good enough to make the insinuation’.

  8. Not what happened at all. His records can only be subpoenaed for the purpose of a criminal investigation. As has been thoroughly covered, Trump is not part of any criminal investigation and therefor his records are safe. But, now any politician can have their records subpoenaed for criminal investigation thanks to this decision, which squarely puts the Bidens, and perhaps even the Clintons and Obama and the rest squarely in his DOJ’s sights. So again, I doubt reports that Trump is ‘furious’ are exaggerated as this is the means to the end of Joe Biden and his criminal involvement with Ukraine and China.

    1. No, getting Biden’s records before the election is impossible. The deep state (aka the bureaucracy) will not permit this.

    2. You don’t even know what crime he is supposed to have committed do you? You don’t know a goddamn thing about what you’re talking about, do you?

    3. Maybe you should be careful using bullshit terms like “his criminal involvement” against people who have not even been accused by an agency with the authority to charge crimes.

      Do you really think if crazy TVRudy had been able to manufacture some Deep State Nefariousness that AG thug Barr wouldn’t have used it against the Bidens? Or is this some, “just wait! They’re about to arrest them all!” QAnonsense? You guys keep pushing these arrest dates out further and further. Do your numerology before making these statements. At some point people might start calling you guys pathetic.

  9. >>state criminal subpoenas to the types of judicial process the president may not categorically ignore

    abuse bin expanded.

  10. Silly and inaccurate click-bait headline, since they did not “betray” Trump.

    1. Please stop saying exactly what I was going to say 30 minutes before I was going to say it.

      Thank you.

  11. “…it could set off an avalanche of politically motivated investigations that would bury his presidency.”

    Get the fuck outa here; if it ain’t buried by now, it’s not likely going to be.

    1. It all depends on whether the Senate and the White House remain Republican. They only have a few weeks before they won’t be able to replace Trump on the ticket. Clock’s ticking…

  12. It’s hard to say they stay loyal to the law when they say the law says something that the people who wrote the law and voted for it clearly didn’t mean for it to say.

    1. The law is written down. If you want to discern the innermost thoughts of dead men, find a psychic.

      1. So women should be excluded every time the Constitution uses the word “men”? And by “men” they meant “black men”, except when they didn’t? And how do you feel about the second amendment being so tightly tied to a “well-regulated militia”?

        1. Hey guess how many times the word “men” appears in the constitution.

          “Well-regulated militia,” of course, is present, despite the wishes of the gun lobby. Not that it mattered in the end.

  13. I’m not sure I understand what the subpoena is for. Surely to subpoena something, there must be some underlying crime being investigated and some already existing evidence showing probably cause. I don’t see that here, which is why I don’t buy the whole “victory for the rule of law” shtick. I could be wrong, but this really seems like nothing more than a fishing expedition to get potentially embarrassing material for campaign ads.

    1. You should read the actual arguments and the actual laws. If Congress could only subpoena tax returns for criminal investigations you might be right. But this is the problem with simple people opining on complex legal issues: they invent their own rules under which their arguments make perfect sense, but those aren’t the rules the court uses. They were using U.S. federal tax law, § 6103 of title 26 of the United States Code, which states that Congress may request copies of anyone’s tax returns. Period. It says nothing about criminal proceedings being necessary. The fact that the black and white, simple language of the Constitution, the language Originalists love to abide by, leaves zero room for questioning whether Trump is obliged to cough them up. You don’t get to pretend the law is whatever you want it to be or what you think it ought to be.

  14. So Schumer is a piece of shit. The justices execute their roles in accordance with the constitution, and Sully follows ENB and Dalmia down the shitweasel hole.

  15. So Schumer is a piece of shit, the justices execute their roles in accordance with the constitution, and Sully follows ENB and Dalmia down the shitweasel hole.

  16. Yet in regards to Trump’s taxes, is there any reasonable suspicion, any actual evidence, or even any indications that they contain evidence of criminal activity? Or is it just that his opponents want them for a fishing expedition to find anything they might be able to use, in or out of context, to attack him with?

  17. Silly Marxist libertarians. Trump’s attorneys knew he didn’t have immunity. They got exactly what they wanted. Trump’s tax records are now politically useless to the Democrats. This is why Libertarians will always be 2-3% in every election. You people don’t live in the real world.

  18. As I understand it: A grand jury may require Trumps tax records because it’s alleged that he paid hush money to women from campaign funds. Someone may allege that Pelosi used campaign money to pay for sex action in Golden Gate Park. That would be enough to convene a grand jury.

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  21. Betraying Trump, Kavanaugh and Gorsuch Stay Loyal to the Law Two centuries of precedents say the president is not immune from judicial process.

    The idea that Trump’s appointees are personally beholden to him is your foolish delusion; it reflects badly on you.

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