How the Supreme Court Brought Back the Monarchy

READ AND WEEP:  As is often the case, one of the best tips I would ever get as a reporter I accidentally stumbled over while lost in the aisles of Trader Joe’s on De la Vina Street. 

Somewhere near the onions, I ran into Keld Hove, then a high-profile Santa Barbara police officer. Hove was a Danish-born judo hotshot before becoming a naturalized American citizen and then a cop who spent the better part of 20 years figuring out how to get homeless people off the streets and into programs.

A fireplug of a human being, Hove was always too happy to share his thoughts, of which he had many. On this day, about 10 years ago, he offered a tip, and I only now realize how prescient it was.

Donald Trump was then running for president against Hillary Clinton. Trump, Hove explained to me, was not content to merely  become president. He would revolutionize the office. He would become America’s first emperor. Being an immigrant, Hove had a broader historic sweep.

For some reason the term “emperor” really resonated. It aligned more with my own rhetorical sensibilities than the more apoplectically outraged appellations then being conjured by progressive Democrats, such as “the Führer” or “Il Duce.” It can be argued they, too, were prescient.

Like a lot of things I hear, I popped Hove’s nugget into my back pocket and have been walking around with it ever since.

This week, the Supreme Court of the United States — otherwise known as SCOTUS, one of the more unfortunate-sounding acronyms ever — made Hove’s prediction come true.

In a landmark ruling of genuinely epic historical impact — “one for the ages,” as one of the prevailing justices opined — the court majority ruled 6-3 this Monday to endow Trump — and the office of the presidency — with all but unlimited powers of immunity from criminal prosecution for crimes committed while in office.

For those endowed with an especially bitter sense of irony, the timing could not have been more perfect.

Or worse.

The ruling was released just three days before the Fourth of July, the day that we as a nation celebrate the signing of the Declaration of Independence. In that, we severed all ties with the monarchy of England and declared ourselves to be a new nation where at least all white men with property were equal and that no man — no matter how white, how propertied, or of exalted military rank — was above the law. 

It is now official: That’s no longer the case. 

To the extent the president can claim to be acting in any official capacity — no matter how corruptly and violently at odds with the existing law — he or she is now shielded by either an “absolute” or “presumptive” immunity. 

The bright line separating these two, according to the court ruling, remains very much a work in progress still to be determined over time.

Only to the extent the president is acting in a strictly personal capacity, the court majority ruled, does the threat of criminal prosecution exist. This threat is more hypothetical and theoretical than real.

The court ruled that no information gleaned from official documents involving the alleged transgressions in question can be used as evidence in any prosecutions based on the personal misconduct of a president.

Likewise, it ruled that no evidence regarding the motive of a president will be admissible should any such cases be brought for prosecution.

In other words, the glimmer of a specter of prosecution still exists, but only with the prosecution’s hands and feet tied firmly behind its back. 

Happy Fourth of July.

The king is dead! Long live the king!

Or whatever.

For those tuning in late, the ruling relates to federal criminal charges brought against Trump that he conspired to steal the 2020 election from Joe Biden by falsely claiming, despite having been repeatedly told the contrary by his closest advisors and by 60 courts across the country, that the election results were rigged and stolen; for using the Justice Department to pressure and threaten those officials overseeing the election in seven key battleground states; of conspiring to empanel bogus state electors to fraudulently certify himself as the victor; for leaning improperly on Vice President Mike Pence to block the lawful certification of the lawful election results; and for fomenting a riot and invasion of the U.S. Capitol on January 6, 2021, to stop the certification of the 2020 election results.

Trump claimed that he is immune from prosecution because he was acting in an official capacity. 

Judge John Roberts emphatically agreed. The American presidency, he argued, was constitutionally designed to allow for the nimble, energetic, vigorous, bold, and unhesitating exercise — all adjectives that appear frequently in the ruling — of power. 

This authority, he concluded, cannot be allowed to be distracted, chilled, and distorted by the pall of potential prosecution, also words that appear with frequency in his opinion. 

As a practical matter, the court ruling means the January 6 case against Trump will not be heard before the November election and voters will not be provided the full bill of particulars in a court of law prior to casting their ballots. 

Roberts did rule that a few of the charges — those involving personal contacts made by Trump and his private attorneys to election officials from other states — should be sent to a district court judge to determine if that conduct warranted a criminal hearing, and if the “content and context” of Trump’s inflammatory remarks, tweets, and texts on January 6 also warranted a criminal hearing. 

Maybe those preliminary proceedings will unfurl as the election plays out. We don’t know yet. It would seem relevant information for voters to have.

Leading the minority dissent against this majority ruling was a fuming Supreme Court Justice Sonia Sotomayor. “The Court gives former President Trump all the immunity he asked for and more,” she wrote. “Because our Constitution does not shield a former president from answering for criminal and treasonous acts, I dissent.”

 She continued, “The relationship between the president and the people he serves has shifted irrevocably. In every use of official power, the president is now a king above the law,” she both wrote and read. “With fear for our democracy, I dissent.”

Not one single word in the Constitution, Sotomayer noted, addressed the issue of presidential immunity. That silence speaks volumes. Early framers of the Constitution were acutely aware of issues of executive privilege.

The Constitution provided limited protection against arrest in the “Speech and Debate Clause” for inflammatory statements made by legislators upon the House Floor, except, however, in matters of “Treason, Felony and Breach of the Peace.” If the framers wanted to extend such protections to the president, she argued, they could have done so. “It seems history matters to this Court only when it’s convenient.” 

This is a not-so-veiled dig, pointing to the majority’s reversing of Roe v. Wade and New York’s gun safety rules two years ago when the same majority wrote that there was no historic basis for either when the Constitution was first written.

“Settled understandings of the Constitution are of little use to the majority in this case, and so it ignores them.” Joining Sotomayer in dissent were justices Elena Kagan and Ketanji Brown Jackson.

Roberts was uncharacteristically dismissive, sniffing that the dissenters “strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today.” He also complained that they “exude an impressive infallibility” while accusing them of “fearmongering on the basis of extreme hypotheticals.”

Despite Washington’s hot and steamy summers, no air-conditioning will be needed at the court for some time. 

Normally, this is where I’d say something snappy, but I find all of this too depressing.

Keld Hove has recently retired; bought and runs San Ysidro Pharmacy with his wife; started a globe-trotting enterprise of teaching the finer skills of breadmaking; and unexpectedly became a celebrity back in his native Denmark, where a video of him working the streets of Santa Barbara as a cop has gone viral. Like I said, he is a fireplug of a human. 

But for me, his real claim to fame is being so right about Trump so many years ago. There’s one thing we can do to inoculate Keld from the consequence of all this precocious prescience: Vote to keep the emperor out of office.