When Robert Mueller appointed Andrew Weissmann as one of his top advisers, many of us warned that it was a poor choice. Weissmann seemed intent to prove those objections correct in increasingly unhinged and partisan statements.
This week, he ratcheted up the rhetoric even further in claiming that the nation is “one vote away” from the end of democracy if the Supreme Court does not embrace the sweeping claims of Special Counsel Jack Smith.
At the time of his appointment, many Republicans objected to Weissmann’s status as a democratic donor, including his reported attendance of the election night party for Hillary Clinton in 2016. My objection was not to his political affiliations but to his professional history, which included extreme interpretations that were ultimately rejected by courts. Weissmann was responsible for the overextension of an obstruction provision in a jury instruction that led the Supreme Court to reverse the conviction in the Arthur Andersen case in 2005.
Weissmann then became a MSNBC analyst and a professor at New York University. In his book, he attacked prosecutors for refusing to take on his extreme views. Weissmann called on prosecutors to refuse to assist John Durham in his investigation.
Now he is predicting the end of democracy if the Court remand the immunity case for further proceedings.
Weissmann told MSNBC anchor Jen Psaki on Sunday:
I think that it’s important to remember that at the outset, the court had already given Donald Trump the win that he was seeking, which is the delay of the DC trial.
So going into this, this was all upside for him. I mean, I think he had to be thinking, I’m making this really outlandish argument, with ramifications that couldn’t possibly be squared with the text and history. The text of the Constitution or the history of the presidency? So it’s all upside if the court would actually bite on this. And so what was surprising is that there were justices who actually were taking this seriously. And it just was, frankly, shocking.
Remember, going into this, the given was that private conduct was certainly not, immunized from criminal liability. What everyone’s talking about now is, hey, maybe they think that some of this is private and they can go forward, but that was what was given going into this. And the reason people are thinking that is because there seem to be four justices who were really taking Donald Trump’s claim of criminal immunity seriously. And we are.
I mean, I know it sounds like hyperbole, but I think your opening is so correct that we are essentially, as Neil put it, one vote away from sort of the end of democracy as we know it with checks and balances. And to say it’s an imperial presidency that would be created is, it’s frankly saying it would be a king, he would be criminally immune. And that that is what is so shocking is how close we are.
And we are really on the razor’s edge of that kind of result. But for the chief justice.
Just for the record, it sounds less “like hyperbole” than hysteria. The justices were exploring the implications of the sweeping arguments on both sides of the immunity question. What they were not willing to do (as does Weissmann) is simply dismiss any arguments of official status on the part of the accused. That would establish a dangerous ambiguity for the future as prosecutors claim that political statements are private matters for the purpose of prosecution.
Ironically, Weissmann’s lack of concern for the implications of such an interpretation is reminiscent of his prior sweeping arguments as a prosecutor that led to the stinging defeat in the Anderson case.
Of course, there is another possibility is that the justices were not seeking the end of democracy. The Court was honestly trying to get this standard correct not just for this case but future cases. To do so, it will require a record on the underlying actions rather than the categorical threshold judgment made by the district court. The argument showed justices exploring how to avoid a parade of horribles on either extreme with a more moderate approach.
As I previously noted, it has been almost 50 years since the high court ruled presidents have absolute immunity from civil lawsuits in Nixon v. Fitzgerald. That protection applied to acts taken “within the ‘outer perimeter’ of his official responsibility.”
Apparently, that immunity did not endanger democracy.
In United States v. Nixon, the court also ruled a president is not immune from a criminal subpoena. Nixon was forced to comply with a subpoena for his White House tapes in the Watergate scandal from special counsel Leon Jaworski.
Since then, the court has avoided any significant ruling on the extension of immunity to a criminal case — until now.
There are cliffs on both sides of this case. If the court were to embrace special counsel Jack Smith’s arguments, a president would have no immunity from criminal charges, even for official acts taken in his presidency.
It would leave a president without protection from endless charges from politically motivated prosecutors.
If the court were to embrace Trump counsel’s arguments, a president would have complete immunity. It would leave a president largely unaccountable under the criminal code for any criminal acts.
The first cliff is made obvious by the lower-court opinion. While the media have largely focused on extreme examples of president-ordered assassinations and coups, the justices are clearly as concerned with the sweeping implications of the DC Circuit opinion.
Chief Justice John Roberts noted the DC Circuit failed to make any “focused” analysis of the underlying acts, instead offering little more than a judicial shrug.
Roberts read its statement that “a former president can be prosecuted for his official acts because the fact of the prosecution means that the former president has acted in defiance of the laws” and noted it sounds like “a former president can be prosecuted because he is being prosecuted.”
The other cliff is more than obvious from the other proceedings occurring as these arguments were made. Trump’s best attorney proved to be Manhattan District Attorney Alvin Bragg — the very personification of the danger immunity is meant to avoid..
Weissmann is not concerned with the clear politicization of the criminal justice system by Bragg just before one of the most consequential elections in our history.
No, the threat is that justices may want to balance the interests over immunity by rejecting the extreme arguments on both sides. They may try to pursue a course that allows for immunity for official acts or functions while rejecting immunity for non-official acts. Some or all of Trump’s actions or statements could well fall into the unprotected category.
The sense of alarm expressed by legal experts is that the Court would not simply sign off on the absolutist arguments of Smith and, most importantly, allow for a trial before the election.
So how will democracy end if the Court adopts a middle road on immunity? It appears to come down to the loss of a possible conviction to influence the outcome of the election.
At the same time, MSNBC guests are also calling, again, for the packing of the Supreme Court. While conservative justices have repeatedly voted with the Biden Administration, it does not matter. They want the Court packed to guarantee outcomes with the appointment of reliable liberal justices. All of this is being defended in the name of democracy, as was ballot cleansing.
The problem with the escalating rhetoric is that there is not much room for further hysterics. Where does Weissmann and others go from here after predicting the imminent death of democracy?
Pundits have now predicted the creation of camps for democrats, killing journalists and homosexuals, the death of the free press, and tyranny. That leaves only systemic mutilations and Roman decimation.
For lawyers to fuel this hysteria is a sad commentary on the state of our country. Whether a true crisis of faith or simple opportunism, it disregards centuries of constitutional history in overcoming every threat and obstacle. We have the oldest and most stable constitutional system in the world. To suddenly embrace tyranny would require all three branches, and the citizens as a whole, to shred an elaborate system of checks and balances.
We are better than that . . . and these inflammatory predictions.
