In Thursday’s arguments in the Supreme Court case Donald J. Trump v. United States, the high court’s second-oldest member, Justice Samuel A. Alito Jr., ridiculed the hypothetical question posed by Judge Florence Y. Pan to a Trump attorney, D. John Sauer, at the Jan. 9 appellate court hearing.
“I’m asking a yes or no question: Could a president who ordered SEAL Team 6 to assassinate a political rival, who was not impeached, would he be subject to criminal prosecution,” asked Pan.
“If he were impeached and convicted first,” Sauer said.
Central to the former Justice Antonin Scalia law clerk’s arguments in January and Thursday is that when a man becomes president, he becomes a part of the constitutional machinery, no longer a regular citizen.
In this construct, the president is always the president, and the only way to laicize him is through a House impeachment and a Senate conviction for conduct that then becomes vulnerable to criminal prosecution.
The so-called SEAL Team 6 scenario has taken on a life of its own, with Trump’s opponents extrapolating that Trump was already working on his target list.
One example is Sen. Brian E. Schatz (D-HI), who said as much in a segment on the Jan. 13 program of the MSNBC show “All In with Chris Hayes.” The senator told Hayes Trump was declaring he would be a tyrant in his second term.
“It’s not like he’s saying he can not pay his taxes, or jaywalk, or use illegal drugs,” the senator said. “He’s saying through his lawyers: ‘I can use the most powerful military in the world’ against his political opponents.”
Alito ridicules Pan’s SEAL Team Six hypothetical
Alito saw his opportunity when Justice Sonia M. Sotomayer struggled with Alito’s concept of whether presidents have absolute immunity for all acts or whether just for acts that could plausibly be argued are official acts.
“I’m not quite sure why he used the word ‘plausible,’ because that seems to negate — might as well give absolute if you’re saying plausible because anybody could argue plausibility,” she said.
Then, Alito took on the absurdity of Pan’s hypothetical about a president ordering Navy SEALs to target his opponents with the same military unit that killed Osama bin Laden.
“Well, I mean, one might argue that it isn’t plausibly legal to order SEAL Team Six,” he said to nervous laughter in the courtroom at the mention of the celebrated hypothetical Alito was calling out.
“I don’t want to slander SEAL Team Six because they’re — no, seriously — they’re honorable,” he said. “They’re bound by the Uniform Code of Military Justice not to obey unlawful orders, but no one — I think one could say it’s not plausible that that is legal, that that action would be legal.”
Alito then waxed on the number of crazy hypotheticals to Sauer, who was Pan’s victim four months prior.
“I’m sure you’ve thought of lots of hypotheticals, where a president could say: ‘I’m using an official power,’ and yet the president uses it in an absolutely outrageous manner.”
Pan married former Souter clerk, Kavanaugh accuser
President Barack H. Obama put Pan on the federal district court in Washington, and President Joseph R. Biden Jr. put her on the U.S. Court of Appeals for the District of Columbia.
These courts are among the most important in the judiciary because they handle cases involving the federal government, so why her?
One clue is Pan’s husband, Max I. Stier, a very important Democratic attorney. Stier was a law clerk for Supreme Court Justice David H. Souter, nominated by President George H.W. Bush, but nonetheless, one of the most stridently leftwing justices to ever sit on the high court.
In addition to getting his ticket punched as a Souter clerk, Stier worked on President William J. Clinton’s defense team during his 1998 impeachment.
Today, the judge’s husband runs the Soros-funded Partnership for Public Service, a non-profit that indoctrinates federal bureaucrats.
As my piece emphasizes, the public must understand the potential consequences of transforming career civil servants into political appointees. Americans want experts serving them, chosen for their capabilities, not blind loyalty. Let’s prioritize an effective and accountable… https://t.co/MILHj30bFI
— Max Stier (@MaxStier) December 21, 2023
Stier’s other connection to the Supreme Court was his Yale classmate, Justice Brett M. Kavanaugh. When Stier was on the Clinton defense team, Kavanaugh was working for Special Counsel Kenneth W. Starr, the man gunning for Clinton.
When Trump nominated Kavanaugh to the Supreme Court, it was Stier who called the FBI anonymously to claim that he witnessed the nominee drop trou and force his penis into a female’s hand. The woman in question told The New York Times she did not remember the incident Stier described.
SCOTUS decision expected in July
The Trump immunity case might be the last one argued before the Supreme Court this session; no other cases are scheduled.
It is the tradition for the justices to vote after lunch on the cases heard in the morning, so presumably, they know how the case will shake out. At the vote, justices may bring with them their pre-written proposed rulings — based on the briefings from both sides and perhaps from the oral arguments.
The chief justice assigns the writing of the opinion on whatever side he is on, so there is always institutional pressure for a chief justice to join the majority so he can craft the law of the land. With five other conservatives, that side does not need Chief Justice John G. Roberts Jr., so he does not have the leverage he once wielded.
Controversial decisions are often held until the last day in June, or sometimes the first week of July, because the minority is given as much time as possible to craft their dissent. This is also the time when there is horse-trading among the justices over nuances.
Famously, Roberts wrote the majority opinion overruling the Patient Protection and Affordable Care Act, Obamacare, but then switched sides and wrote the opinion sustaining the PPACA.
