On March 4, the U.S. Supreme Court announced their unanimous rejection of Colorado’s disqualification of former President Donald Trump on the state’s primary ballot, under section 3 of the Constitution’s 14th amendment, because he “engaged in insurrection” by trying to overturn the 2020 election. Four justices disagreed with the majority’s ruling that Congress must first pass legislation to enforce disqualification of insurrectionist candidates.
This widely expected ruling followed the high court’s Feb. 28 announcement that it would hear Trump’s claim that he’s immune from prosecution for any crimes he committed while president, including the four felony charges related to his role in the multi-pronged effort and violent Jan. 6 insurrection to overturn his election loss to Joe Biden. Because the nation’s second-highest court, the Washington D.C. Circuit Court of Appeals had already ruled against Trump’s immunity claim, most observers predicted the Supreme Court would reject the appeal and allow Special Counsel Jack Smith’s trial to proceed.
But, the justices scheduled oral arguments on Trump’s immunity claim for April 22 and may not issue a ruling until the end of their term in June, making it unlikely that Trump’s election conspiracy trial would go forward before the November election. Between The Lines’ Scott Harris spoke with Thomas G. Moukawsher, a former Connecticut complex litigation judge, who discusses his concern that the Supreme Court’s action delaying Trump’s election obstruction case could take America down the dark road to dictatorship.
THOMAS MOUKAWSHER: Well, if they accept his argument or anything close to his argument, then they’re setting up a situation in which the president only needs to hang on to one-third of the U.S. senators in an impeachment proceeding to do whatever he wants, including kill people for instance, because his own lawyers said that the only remedy for a president of the United States who decided to send a SEAL Team 6 to kill his political opponents, the only remedy would be to impeach, convict and then prosecute the president.
So, if the president held on to just one-third case of the United States Senate, they can run around around killing people, doing whatever they want, according to Trump’s position.
And I have to believe that a majority of the Supreme Court will utterly reject that. My fear is they won’t all reject that. Perhaps Justice Thomas will go the whole way and support his view that a president is absolutely immune unless again, impeached, convicted and then prosecuted. And if you do that, you’re starting to give credibility — even if one justice says that’s true, you’re giving credibility to an abhorrent argument that the president of the United States is above the law.
And I can’t think of a more dangerous proposition than that in American history because we’re a country of checks and balances.
And some of those checks and balances are implemented by the courts and they must not default on their duty to make sure that Congress is subject to the rule of law, the president is subject to the rule of law and are the courts are subject too, and following the rule of law. And that to me is the real danger if they go down that road.
And of course, by taking the case up, they not only just delayed proceedings, but suggested that they’re saying the sentiment on the Supreme Court leans in that direction.
That’s kind of worrying.
SCOTT HARRIS: Judge Mark Moukawsher, I wanted to ask you about Merrick Garland. Attorney General Merrick Garland seems to be responsible for the two-and-a-half year delay in charging Donald Trump with his attack on the Constitution and interfering in the peaceful transfer of power. It’s a major reason, it appears, that the nation is now in a race against time to hold Trump accountable before this November’s presidential election.
And of course, with the Supreme Court’s intervention here, it looks like we’re not going to get that accountability before Election Day.
THOMAS MOUKAWSHER: The one thing that’s absolutely certain is the cases won’t be over. None of them will be over before Election Day, but there might be a jury verdict. Of course, there is the case in New York that I have not mentioned about the hush money payment and that’s an embarrassment I think to everybody.
But that’s the case that’s likely going forward first, because there’s so much more serious things than these charges. And if you go forward with this one, then it’s just kind of a mockery of the whole circumstance.
But I think that if the attorney general and the FBI had moved quickly right after the event that they could have had him charged within, I mean, in reality, they could have had the charges in a few months.
Let’s say that they’re always going to be foot-dragging to a certain extent. They could have done it in six months.
Instead, here we are with the case about the last election being finally considered and not considered yet, not tried yet with the new election coming and I think the attorney general bears some responsibility for not seeing the magnitude of what had happened and moving on it quickly. But of course, they wanted to proceed with extreme caution with something so serious.
But this extreme caution — and maybe that’s what’s happening in the courts now — is actually meaning that justice delayed can be justice denied.
Listen to Scott Harris’ in-depth interview with Thomas G. Moukawsher, (19:05) and see more articles and opinion pieces in the Related Links section of this page.
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