The justice’s preference for unrestrained executive power was on display last week ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌

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“When the president does it, that means that it is not illegal.” So said Richard Nixon after his resignation. At the time, Nixon was mocked. Now, after last week’s disastrous oral arguments, the Supreme Court seems poised to enshrine that sentiment as the law of the land.

Much has been said about the hearing, which considered whether Donald Trump is immune from prosecution for his bid to block the peaceful transfer of power. This should have been a quick, unanimous matter: of course he can be prosecuted. Instead, the conservative justices sounded like defense lawyers, warning of doom if presidents are held legally accountable.

Some of us are hoarse from howling about the hearing. Let me share a few points to consider.

Start with Justice Brett Kavanaugh. Trump, it is said, acts impulsively and rarely plans ahead. Not when choosing a Supreme Court justice: in 2018, as he mulled possible nominees, Trump picked the one

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most likely to say he couldn’t be indicted, as I wrote at the time

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.

Kavanaugh had been a Javert-like pursuer of President Bill Clinton as a prosecutor in the 1990s. But by the time he was working for President George W. Bush, he proclaimed that presidents should not be indicted, or even investigated. Not to worry, he reassured: former presidents could be charged, of course.

Last week we heard none of that clarity. Instead, Kavanaugh vented about Morrison v. Olson, a case that upheld the investigations of presidents and the Independent Counsel Act — a law that has long lapsed and did not apply to the current case. He also seemed to approve of the idea that statutes might need to specifically mention the president “so that the president’s on notice and can conduct himself” accordingly. I’m not holding my breath that Kavanaugh will return to his prior position that ex-presidents can be prosecuted.

A second point: originalism is a sham. Here, history’s evidence is overwhelming. Members of the Brennan Center’s Historians Council, along with other scholars, detailed

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in a friend-of-the-court brief

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that the founders did not want to create a king who was above the law. Ignore all the originalists’ huffing and puffing about “history and tradition.” We heard little of that.

The conservatives did cling to one scrap of founder wisdom. Benjamin Franklin said: “History furnishes one example only of a first Magistrate being formally brought to public Justice. Everybody cried out ag[ain]st this as unconstitutional.” But as historian Holly Brewer has explained in detail

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, Franklin was complaining about English law, and argued that our Constitution should provide for the punishment of the chief executive.

What about textualism, the supposed fealty to the commas and clauses of the Constitution? The distinction the conservative justices propounded between a president’s official acts and unofficial acts is spelled out in Article II, Section . . . actually, nowhere. It’s made up, by judges, perhaps on the spot.

Can we please put to bed the pretense that there is intellectual integrity to originalism as practiced by this Court?

Finally, let’s also discard any remaining pretense that this Court believes in judicial restraint. John Roberts memorably said, “If it’s not necessary to decide more to dispose of a case, in my view it is necessary not to decide more.” We did not hear that from him, or the other conservatives. More typical was Justice Neil Gorsuch when he intoned that they had to rule “for the ages.”

The question before the Court is not what the outer limits of presidential immunity might be, but whether Trump is immune from prosecution for his alleged crimes. It is not an official act to try to overthrow the Constitution and block the peaceful transfer of power, even if you conspire with other government employees to do it.

In other eras, justices showed restraint even in big cases with the presidency at stake. In United States v. Nixon in 1974, the Court ruled that yes, there is such a thing as executive privilege, and yes, there are times it should be honored — but in this case, hand over your tapes! Nixon resigned two weeks later.

Chief Justice Warren Burger, appointed by Nixon, wrote that decision. The ruling was unanimous. Days later, Sen. Barry Goldwater and other party leaders visited Nixon to urge him to resign. The president’s own party cut him loose. This time, the Court looks ready to turn toward Trump, not away. Maybe they are reading the latest polls. Today, many Republican institutions and some previous Trump critics are making their peace with him

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.

All of which suggests that this Court is not just a conservative Court, or a Federalist Society Court, or even a Republican Court — it is becoming a MAGA Court. That turn augurs ominously for the rule of law. If we have a future president compelled to declare “I am not a crook,” the Court should not respond, “If the president does it, that means it is not illegal.”





Violent Crime on the Decline

New FBI data and city-level reports show that violent crime fell significantly last year, building on declines in 2021 and 2022. A Brennan Center analysis breaks down the numbers and explains what they can and can’t tell us about recent crime trends. “Crime data is far from perfect. But the FBI’s data is improving in both quality and frequency of reporting, and independent research allows us to double-check the bureau’s work,” Ames Grawert writes. Read more

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Uncovering Online Police Surveillance

A lawsuit by the Brennan Center and Data for Black Lives obtained documents revealing that Washington, DC, police have spent years using online surveillance tools to monitor people’s social media activity and keep tabs on peaceful protests. The documents illustrate how the lack of meaningful guardrails around how and when law enforcement can use such tools leaves the public vulnerable to abusive surveillance. “So long as the police continue to purchase social media surveillance tools, they must be deployed in a way that promotes public safety without undermining fundamental privacy and First Amendment rights,” Ivey Dyson, Yeshi Milner, and Helen Griffiths write. Read more

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Uncompetitive Ohio House Races

Ohio has long been one of the most gerrymandered states in the country, which has predictable consequences for the state’s elections. A new Brennan Center resource shows that the majority of Ohioans live in state house districts that have been drawn to lock in general election outcomes before any votes are cast. That could change if the Citizens Not Politicians campaign to reform the state’s redistricting process succeeds this November. Under the new rules, citizens would “draw new district maps that center community needs and voter preferences rather than the interests of incumbents,” Gina Feliz and Yurij Rudensky write. Read more

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Arizona Legislators Move to Thwart Voters

Arizonans will vote on a ballot measure in the fall that would restore abortion access and repeal a newly revived 19th-century ban. However, slides from a leaked strategy meeting reveal that state legislators may put a competing measure on the ballot that would use misleading language to dilute support for the abortion rights initiative. “That isn’t only deceptive — it perverts the political process to thwart the will of the people and defy the preferences of the majority of voters,” Alice Clapman writes. READ MORE

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A Model for AI Oversight

National security agencies are rapidly adopting artificial intelligence systems, posing serious risks to civil rights and civil liberties. To address these concerns, the White House and Congress can look to the government watchdog that was created for post-9/11 counterterrorism programs as an example of how to bring transparency and accountability to an area with extremely limited oversight. Writing for Just Security, Faiza Patel and the ACLU’s Patrick C. Toomey offer suggestions for how to ensure policymakers and the public are kept informed about the use and impact of AI in national security. Read more

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How the Weinstein Ruling Could Impact Trump

The New York Court of Appeals overturned disgraced film producer Harvey Weinstein’s sex-crimes conviction last week, citing errors by the trial judge. Manhattan District Attorney Alvin Bragg announced plans to retry Weinstein, but the decision has broader implications. Our new explainer walks through what Weinstein’s trial judge got wrong, what the appeals court ruling means for Trump’s ongoing hush money trial, and how it could have a lasting impact on criminal justice in New York. READ MORE

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Coming Up

VIRTUAL EVENT: Sniffing for Cooked Books

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Thursday, May 9, 3–4 p.m. ET



A growing number of jurisdictions are embracing public campaign financing programs. While this is a positive step toward countering the outsize influence of big money in politics, agencies must take care to ensure these systems are fair and protected from abuse. A panel of campaign finance experts and administrators will discuss the best practices for giving campaigns access to the funds they’re eligible for while preventing the misuse of public resources. RSVP today

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Produced in partnership with the Council on Governmental Ethics Laws

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News

Elizabeth Goitein on the dangers of a new surveillance bill // WIRED

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Douglas Keith on state supreme court races // ASSOCIATED PRESS

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Eliza Sweren-Becker on an RNC lawsuit targeting voter rolls // USA TODAY

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Michael Waldman on the Supreme Court’s conservative supermajority // THE ATLANTIC

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