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Trump Reaches Supreme Court

Posted on Tuesday, December 19, 2023
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by AMAC, Robert B. Charles
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21 Comments
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The front of the US Supreme Court in Washington, DC, at dusk.

Jack Smith, the federal prosecutor charging Donald Trump with possession of classified documents and defrauding America with a speech on January 6th, has asked the Supreme Court to decide if Trump can be criminally charged, although already impeached. This case could rock the country. Here is why.

Put aside the audacity of Justice charging a US citizen, here a former president and leading candidate, before knowing whether they legally could.

Put aside how these charges against Trump were constructed, built on tainted congressional hearings, a home raid that appears to test the 4th Amendment (“search and seizure”) and indifference to the 1st Amendment and political speech protections (“freedom of speech”). 

Put aside the reputation of this specific prosecutor, preciously excoriated and reversed by a unanimous Supreme Court (9-0) for misapplying federal bribery statutes in order to charge a former Republican Governor

Put aside the untenable state charges in New York and Georgia by partisan prosecutors who gained their posts on promises of politically persecuting Mr. Trump, and who consistently display considerable animosity to his politics.

Put all that aside, and instead look at the first major Supreme Court case ever decided, Marbury v. Madison (1803), for some timely guidance. 

In that case lies a buried gem. If that gem is unearthed by the Court, it could become Mr. Jack Smith’s undoing, perhaps also Mr. Garland’s and Biden’s.

In Marbury, Chief Justice John Marshall ruled that a commission sealed but not delivered during the term of John Adams – who was a Federalist – could not be held up or undone by Adam’s successor, Jefferson – a Republican.

But the ruling was more important than that. It was a judicial tour de force, a giving with one hand and taking with another, resetting the nation’s course.

What Marshall did was to say that the commission was technically valid and that Jefferson was wrong not to deliver it, but also that the statute that directed delivery, the so-called Judiciary Act of 1801, was itself unconstitutional.

Thus, very cleverly, Marshall said Jefferson would be wrong not to deliver it – if the underlying statute were constitutional – but found that statute not constitutional, letting Jefferson off the hook.

This gave Jefferson a technical win, blocking the delivery of the Adams commission, but also elevated the Supreme Court to the ultimate arbiter of “what the law is,” the constitutionality of a given statute, and its application.

In this deft stroke, Jefferson was checkmated.  He could not contest a case he had technically won, since the commission was not deliverable, but he also lost big, as the Supreme Court was now the final arbiter of laws.

Fast forward to today. Jack Smith wants the Supreme Court to say whether a former president, already House impeached, can be criminally prosecuted.

This is an open legal question, never before been decided by the Supreme Court. While Richard Nixon might have been criminally indicted, he was not, since his successor, Gerald Ford, preemptively “pardoned” him, ending the discussion.

But here is the rub. The Supreme Court is (finally) being asked about the Trump cases. Jack Smith wants permission to keep prosecuting Trump since nothing in the US Constitution bars a former president from criminal liability.

But the Supreme Court could rule in a way that parallels Marbury v. Madison, giving Jack Smith what he wants with one hand and taking it with the other.

In short, they could rule that nothing in the US Constitution, including the Impeachment Clause, prevents a former president from being criminally prosecuted for acts committed in office.

They could then reach beyond that ruling, and examine the broader constitutional questions presented by this prosecutor’s novel interpretation of the statute and potential violations of the 4th and 1st Amendments in these cases.

If the High Court finds the Constitution does not bar criminal indictment of a former president, even one formerly impeached, but also finds the statute used – as in past Jack Smith cases – was wrongly applied, or violations of the 4th or 1st Amendments have occurred and are not “harmless,” the Trump cases could be tossed, entire process thrown out as unconstitutional.

If that happens, you can thank John Marshall, author of that first big opinion Marbury v. Madison, since he appropriated this exact right to the High Court.

Then think slightly harder, about what this judicially conservative Supreme Court might be saying: A transparently political case, one that misapplies federal law, violates two major provisions of the Constitution, will not stand.

But a case against a former president, even if impeached, for provable charges of violating federal statutes, such as anti-bribery, foreign corrupt practices, or racketeering laws – will stand. That president can be charged.

Now, sit back in your chair, hands behind your neck, look out the window, and consider if anyone you can think of fits that definition. Hmmmm. This could be a very interesting case. As they say, be careful what you ask for.

Robert Charles is a former Assistant Secretary of State under Colin Powell, former Reagan and Bush 41 White House staffer, attorney, and naval intelligence officer (USNR). He wrote “Narcotics and Terrorism” (2003), “Eagles and Evergreens” (2018), and is National Spokesman for AMAC.

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PaulE
PaulE
7 months ago

RBC,

You ask that we and also the Supreme Court put aside just about all the political motivations behind why President Trump is being charged in the first place by all the Democrat prosecutors in all of his cases. That is at the very heart of the matter and exposes what is really at stake here not only for Trump, but for the American people as a whole. This particular case being led by Jack Smith is nothing more than a political prosecution of an individual, in this case Trump, to try and remove him as opposition to the current regime in power, as he threatens the status quo of the administration state that is controlled by the Democrat party.

That smacks of both the old Soviet style show trials and modern day CCP “security” show trails being held in both mainland China and Hong Kong. Where an individual is routinely brought up on bogus charges merely as a pretext to either put the individual in prison for daring to publicly challenge the regime in power in some way or simply create a justification for his execution as a message to the populace at large to simply shut up and conform to the regime’s wishes or else.

One would hope the conservative members of the Supreme Court would be intelligent enough to recognize and acknowledge that, as well as rule accordingly to send a crystal-clear message to both Jack Smith and the increasingly fascist Democrat Party that such abuses of our Constitution and the rule of law will no longer be tolerated. If the Supreme Court buckles and instead does a repeat of their shameful performance of December 2020, then the Democrats will have a clear, unobstructed path to authoritarian rule of this country.

Charlotte Mahin
Charlotte Mahin
7 months ago

Anyone who really cares about this nation enough to want our Constitution to win over the ridiculous charges against President Trump knows that Biden and his comrades are the ones who need to be tried and convicted of treason. Yes, treason. Biden and his family are taking bribes from our enemies and are committing dereliction of duty not to mention not honoring their oaths of office. There is not one thing that this administration has touched that has not failed. I am praying that somehow we can stop the election fraud that the “progressives” use to poison our elections. If we don’t get these Marxists out of DC in 2024, we do not stand a chance of stopping our country from becoming another Marxist hell-hole.

Donna
Donna
7 months ago

Wait. Could it be? What’s that tiny spark I see? Is it, it may be, it is tiny, but ever so bright. It is hope, and the possibility that justice may be served. Thank you Mr. Charles for educating us on this legal gem.

Barbara
Barbara
7 months ago

Everyone keeps saying political prosecution when actually it’s a political persecution. Big distinction here. If a former president can be persecuted for nothing more then to keep him out of office a 2nd term then where does that leave the rest of American citizens. We all know the answer to this and it’s frightening.

Gabe Hanzeli kent wa
Gabe Hanzeli kent wa
7 months ago

lets hope the supreme court rules in favor of trump so these stupid democrats attacks stop.

Garyk
Garyk
7 months ago

Great article!
One can only hope and pray that President Trump is exonerated ( because of only political hatred) and that joebama( the real corrupt person) and his marxist democrat party are dealt a shocking and prosecutable setback for all the dishonesty, corruption and targeting of Americans!!

Dan W.
Dan W.
7 months ago

If anything, perhaps the Supreme Court can at least give us closure on the length of this process.
It certainly doesn’t make sense to drag this case through the election process unnecessarily if the Supreme Court can give us some clarity now.
The result may be similar to Nixon v. U.S. but let’s find out.

Robert Zuccaro
Robert Zuccaro
7 months ago

The left are running out of “legal” options. All I can say is: “Hey, Donald! If Biden sends you a congratulatory case of wine, do not accept it!” Especially if it’s ticking.

J. FARLEY
J. FARLEY
7 months ago

This could be a real educational process, as Dumba## Joe has committed more crimes than the Gambino Family, this could all play out on a larger scale as more evidence against Biden than evidence of President Trump committing a crime, is fall under be careful Democrats what you wish for.
As the old T.V. show the A-Team would say —- I love it when a plan comes together!

GMA
GMA
7 months ago

All the presidents have documents…why not go after all instead of just Trump?

R Anthony Botti
R Anthony Botti
7 months ago

minor edit needed in Paragraph 4: “previously excoriated,” not “preciously excoriated.”

Ben Ray
Ben Ray
6 months ago

The biggest problem in this mess has been weaponizing the government against a political opponent. This has been done several times already against Trump. Government agencies have almost unlimited resources and could keep this up for a very long time and there are no consequences.

PapaYEC
PapaYEC
7 months ago

This case will definitively tell us if the Democrat Slaver Party Deep State and their UN, WEF, Soros, CCP, and Islamist rapacious/murderous/demonic allies have succeeded in capturing SCOTUS.

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