On the Role of the U.S. Supreme Court in Safeguarding the Peaceful Transfer of Power

In the E.U., the state governments and federal institutions can ask the European Court of Justice (the ECJ) for an opinion on a legal matter. This is rare in the U.S., though waiting for a dispute to winds its way formally through district and appellate courts may be unduly bureaucratic, not to mention lengthy. On December 11, 2023, Special Counsel Jack Smith asked the U.S. Supreme Court the ECJ’s counterpart, to decide whether the former U.S. president Donald Trump had any immunity from criminal prosecution of his involvement in the riot at the U.S. Capitol that interrupted the formal counting by a joint session of Congress of the Electoral College presidential ballots. The trial was set to begin the following March, and the question of the former president’s immunity had to be decided before the trial could begin. Hence the “extraordinary request,” which I contend should not be extraordinary given the time frame and the important role of the highest court in safeguarding American democracy from domestic threats.

The prosecutor asked the U.S. Supreme court to review district Judge Tanya Chutkan’s ruling that Donald Trump is not immune from “the election subversion prosecution case.”[1] Trump’s lawyers had argued that Trump’s actions in speaking outside the White House on January 6, 2020 were part of his official duties because he was protecting the American democratic system from alleged vote-fixing by Democrats. Chutkan rejected that argument, pointing out that the speech was oriented to Trump’s re-election and thus was not part of a president’s official duties—efforts to secure another term extend beyond the performance of the office within the current term of office.  Essentially, applying to continue in an office is not a function of the office. Chutkan classified Trump’s speech as falling under the rubric of campaign speeches even though the election had passed because he was using the speech to try be re-elected by Congress (by disputing the authenticity of several state electoral ballots).

To be sure, it was not as if Trump went with the option that he was considering of surrounding the Capitol with tanks—something President Nixon had also considered doing in 1974 during the Watergate scandal, which by the way ended up prompting him to resign. Instead, Trump was trying to throw the election to the Congress by pressuring it to vote on the validity of several of the Electoral College ballots that had been submitted by the state governments to be counted. The U.S. Constitution does give Congress a role in presidential elections, both in certifying the ballots and electing a president outright if no candidate gets a majority of the Electoral College votes. Had there been evidence of significant election fraud that would justify Congressional votes on the Electoral College ballots from several key states such as Arizona, Pennsylvania, and Michigan, then Congress could have intervened while staying within the constitutional framework. It was Trump’s way of applying pressure, by instigating a mob to disrupt the official counting, that resulted in the federal indictments that run just short of insurrection. By the way, I asked a judge on the D.C. district court why he thought Trump had not been indicted on insurrection. “It’s too messy,” he replied. “Isn’t that charge and a conviction based expressly on it necessary for someone to be barred from running for office in the U.S.?” I asked. “No,” the judge replied. “A judge in Colorado is looking at that now,” he added, presumably without there being a trial. It’s a pity that no one asked the U.S. Supreme Court to rule on what a Colorado judge was doing in lieu of a trial on the facts decided by a jury.

Perhaps even more than the presumption of innocence unless convicted of a crime, the rule of law applied even to U.S. presidents is vital to American democracy. Writing to the U.S. Supreme Court, the prosecutors with the special counsel insisted that “nothing could be more vital to our democracy” than holding a former U.S. president accountable for breaking a law.[2] Indeed, a “cornerstone of our constitutional order is that no person is above the law. The force of that principle is at its zenith where, as here, a grand jury has accused a former president of committing federal crimes to subvert the peaceful transfer of power to his lawfully elected successor.”[3] Many democracies have turned into military dictatorships precisely because the peaceful transfer of power was not respected. With a past of rule by kings, both domestic and colonial, many African countries have had trouble with the peaceful transfer of power. As a result, the foreign direct investment of multinational corporations has not been as large as the continent would need to develop economically. Even though it was hard to imagine a military coup in the U.S. in 2023, the precedent of a president getting away with having violated the U.S. Constitution could begin a slippery slope downward. More than sufficient grounds existed in 2023 for the U.S. Supreme Court to fast-track the question of Trump’s immunity.

The question of whether the trial could go forward was subject to time constraints; were the trial date of March, 2024 delayed pending the question of Trump’s immunity from prosecution going through the lengthy appellate process, the question of Trump’s guilt could still be unanswered by the next presidential election, in early November, 2024. Even though several presidential candidates were insisting that they would support a convicted felon for president, presumably voters would want to know whether Trump had committed a crime in attempting to thwart the results of the 2020 presidential election before casting their respective ballots.

Hence, the prosecutors wrote to the U.S. Supreme Court, “Respondent’s appeal of the ruling rejecting his immunity and related claims, however, suspends the trial of the charges against him, scheduled to begin on March 4, 2024. . . . It is of imperative public importance that respondent’s claims of immunity be resolved by this Court and that respondent’s trial proceed as promptly as possible if his claim of immunity is rejected.”[4] The public importance has to do with the electorate having as much information as possible concerning the charges against the presidential candidate before going to the polls that upcoming November.

The fast-tracking would not be without precedent. In US v. Nixon (1974), the U.S. Supreme Court fast-tracked the question of Nixon’s claim of presidential privilege in being immune from a Congressional subpoena for the Oval Office tapes. “In that case, the high court moved quickly to resolve the matter so that one f the Watergate-era cases could proceed swiftly.”[5] It was not long after the ruling that the White House handed over the tapes to a congressional committee, and Nixon’s political fate was doomed from that point. Indeed, the difference between Nixon’s public persona and what he had been saying behind closed doors stunned many Americans who had no idea that even a “law and order” president could have such a squalid criminal mind. The public interest in furnishing the American electorate in 2024 with as much crucial information as possible on one of the presidential candidates can thus be appreciated. It should not be “extraordinary” for the U.S. Supreme Court to see to it that Trump’s federal trial could take place in time for the 2024 presidential election. Winding down the clock, to use a sports analogy, should not be a tactic that any defendant in a criminal trial should be able to use effectively, especially if accountability protecting the peaceful transfer of power is at issue.

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1. Hannah Rabinowitz and Devan Cole, “Special Counsel goes Directly to Supreme Court to Resolve Whether Trump Has Immunity from Prosecution,” CNN.com, December 11, 2023.
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.

American religion and politics: Overreaching Realms

Even though they are formally separated in the U.S. under the constitutional rubric that the federal government cannot lawfully establish a religion and infringe on the free exercise of religion, religion has ventured into politics and vice versa. Valued ideals pertain to both even though the highest in religion are transcendent, meaning that they extend beyond the limits of human cognition, perception, and sensibility, according to St. Denis (aka Pseudo-Dionysius) in the sixth century. So far is the political variety from such ideals as being in heaven! Yet the political sort has enjoyed a near monopoly in the world, including its public discourse. At least as 2019 was giving way to a new decade, captivation on President Trump’s tweets (i.e., brief statements made on the internet’s social media) and the process of impeaching him in the U.S. House of Representatives was strangely devoid of any religious discussion in the public square. This is all the more extraordinary because of the significant role that religion had played historically in presidential politics.

During the U.S. presidential campaign of 1928, for example, Al Smith was chastised for being a Catholic, and therefore thought to be under the sway of the Pope in Rome. During the campaign of 1960, John F. Kennedy found himself subject to the same charge. The simple assumption of papal dictate turned out to be naïve. For one thing, the American presidency is firmly within the governmental realm, and the Second Amendment bars the use of the office to establish (or give preference to) a religion or sect/denomination thereof. Kennedy ran against Richard M. Nixon, whose Quaker background, which presumably disdained lying, turned out in his own presidency (1968-1974) to be particularly lacking as revealed in the Watergate hearings. In short, the impact of a president’s inner religious sense and identity on his conduct (and mentality) can be massively overstated.

The role of religion in politics has been present, however, in reactions to the assumed, overstated impact of a candidate’s religion on his role should he get to the office. For example, based on the overblown fears held by protestant Americans, some protestant leaders, including Jerry Falwell and Billy Graham, and their allies in the political realm were able to gain popularity and power. Graham secretly met with other protestant pastors in 1960 to coordinate campaigning against Kennedy, essentially capitalizing on the popular fear among Protestants. This movement in turn prompted Kennedy to give a speech on September 12, 1960 to the Houston Ministerial Association. He insisted that his Catholicism would not direct or obstruct his policy-making judgment. Interestingly, the push of religion into the political sphere was made by religious figures ostensibly in the religious realm—overextending into the other realm.

In 1980, however, a presidential candidate by the name of Ronald Reagan realized that politicians like himself could make use of the political lobbying of religious leaders and groups. Implicitly, he showed Americans just how trivial the political divide had really been between Catholics and Protestants in presidential politics. While Reagan was still the governor of California in the 1970’s, Phyllis Schlafly, a Catholic, was reaching out to evangelical women to lobby against the Equal Rights Amendment (for women). Along with evangelical political action committees, she established the Eagle Forum in the next decade, when Ronald Reagan was president of the United States. By the time he was in office, he had already realized that he could publically galvanize evangelicals and conservative Catholics to support his political ambitions.

With the political realm dipping into the religious realm and vice versa, the societal issue of abortion also played an important role at the time in uniting socially conservative Protestants and Catholics. After the U.S. Supreme Court’s ruling in Roe v. Wade in 1973, Francis Schaeffer brought in prominent evangelicals including Jerry Falwell to oppose abortion politically. Gay marriage in the early 2000’s would play a similar role in uniting the division that had hitherto hampered Al Smith and John Kennedy. James Dobson’s Focus on the Family and the Family Research Council, which had formed in the 1980s during Reagan’s flourishing years in office, pushed what they publicized as family values against both abortion and gay marriage. Both Focus and the Council were both church-related and lobbyists close to the Republican Party. For example, the groups lobbied for conservative fiscal policies—something near and dear to the Party but less obviously based in Christianity, especially as Jesus espouses giving to the poor and giving up one’s wealth to follow him. The rich man getting into the Kingdom of Heaven is like getting a camel through a needle. Even so, the evangelical lobbying groups became wealthy, using the prosperity gospel from the Old Testament—that God would make Israel prosperous if it keeps the covenant—as a rationale. To be sure, the pro-wealth paradigm had long become dominant over the anti-wealth paradigm, which hitherto had been dominant.[1] Perhaps this shift within Christianity made it easier for evangelical/Catholic political groups to not only pursue wealth themselves, but also appeal to the Republican Party that Reagan had made (i.e., fiscal and social conservatism). 

 

In conclusion, Americans could look back by the end of the twentieth century and see the old religious division as politically artificial, and thus not nearly as important as Americans had believed in 1928 and 1960. But could those same Americans see their contemporary divisions as just as artificial or at least over-drawn? In the Middle Ages amid the Commercial Revolution, the sin of usury (i.e., charging interest on loaned funds) was the moral/religious/political controversy in Europe. By Reagan’s time, the charging of interest even on consumption loans was a dead issue, whereas abortion could be viewed as an extremely important matter. Could this presumed overriding importance of the issue of the day be questioned by looking back at how the salience of the usury debate had run its course in its own time? In other words, in matters of religion and politics, and even their intermeshing, can the human mind put even its most cherished ideals in proper perspective? Can we question our own presumed importance, including that of our ideological ideals, whether religious or political (or both!)?

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1. Skip Worden, God’s Gold (1915), available at Amazon.

The Electoral College Hampered: The Case of Nixon’s 1968 Campaign Treason

While he was running for the U.S. presidency in 1968, Richard Nixon told H.R. Haldeman “that they should find a way to secretly ‘monkey wrench’ peace talks in Vietnam” by trying to get the South Vietnamese government to refuse to attend peace talks in Paris until after the U.S. election.[1] Specifically, Nixon gave instructions that Anna Chennault, a Republican fundraiser, should keep “working on” South Vietnamese officials so they would not agree to a peace agreement before the U.S. election.[2] “Potentially, this is worse than anything he did in Watergate,” said John Farrell, who discovered evidence of Nixon’s involvement from Haldeman’s notes on a conversation with the candidate. That Nixon committed a crime to win the election is itself an indication that the way Americans elect the federal president was flawed. That he went on to cover up the Watergate crime committed during the 1972 campaign only to win by a landslide should give pause to anyone having faith in an unchecked popular election.  I contend that the American Founders had designed the Electoral College in part to catch such a candidate from becoming president, even if the College had never operated as such. Yet it could.

 Through surveillance, President Johnson learned of Chennault’s intervention at the behest of the Nixon campaign. Privately, the president believed that the intervention amounted to treason, though he said nothing publicly, lacking proof of Nixon’s personal involvement. “There’s really no doubt this was a step beyond the normal political jockeying, to interfere in an active peace negotiation given the stakes with all the lives.”[3] Johnson was planning on announcing a bombing pause precisely to encourage the South Vietnamese to the table. Thanks to Farrell’s discovery, we know that Nixon did indeed attempt to undermine U.S. policy. Put another way, he put his own ambition above his country’s national security and interest.

One of the purposes of the Electoral College, as designed, is to act as a check on the American electorate, which can be misled by designing candidates. With so many Americans—even just the seven million at the time of the commencement of the U.S. federal constitution—it could not be assumed that the voters could have enough information on the candidates to take their actual activities into account. The relatively few electors in the Electoral College, however, could uncover non-publicized information pertinent to a good judgment on whom should be president. Electors, for example, could have spoken with Johnson and done some digging on their own to get to the bottom of whether Nixon had committed treason to get elected. Because the electors “work for” the American people, which is sovereign over the government, government intel would have rightly been available to the electors.

“It is my personal view that disclosure of the Nixon-sanctioned actions by [Anna] Chennault would have been so explosive and damaging to the Nixon 1968 campaign that Huber Humphrey would have been elected president, said Tom Johnson, the note taker in the Johnson White House meetings about this episode.[4] So had the presidential electors of the Electoral College been free of the Republican party and cognizant of their function to make up for deficiencies in the popular election, Nixon may not have been elected president in 1968. The “great national nightmare” of Watergate would have been averted. Unfortunately, the selection of president was limited to public information, and the media was not able to make up the difference by getting to the root of the story.

We can look back at all this as a failure in the Electoral College and ask how the electors therein can be selected in such a way that their function as a check on the deficiencies of the popular judgment is enabled and protected. Allowing the political parties to select the electors can be regarded as an obstacle. Perhaps a given state’s electors could be selected in several ways—each elector being determined in a different way—such that no dominant power could subvert the College. The state legislature, for instance, could select one, the governor another. The state’s supreme court still another. A few more could be elected directly by the people by region. Perhaps having electors serve rotating multi-year terms might protect electors from undue external influence so they could resist popular or concentrated private pressure at election time. Paradoxically, American democracy would be strengthened, rather than diminished. The unearthed evidence of Nixon’s pre-election treason demonstrates how faulty the grounds of popular, public judgment can be at the ballot-box.

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[1] Peter Baker, “Nixon Sought ‘Monkey Wrench’ in Vietnam Talks,” The New York Times, January 3, 2017.

[2] Ibid.

[3] Ibid.

[4] Ibid.

Wasteful Agency-Spending: Employee Bonuses as a Solution

Use it or lose it. I am referring to “the habit of [U.S. Government] agencies spending all surplus funding at the end of the fiscal year in order to avoid budget reductions the following year.”[1] By spending the entire amount allotted for the budgetary year, a federal agency can avoid a lower base-line for the following year’s allotment from Congress. The incentive in this system is to spend every dollar in the budget, whether efficiently or profligately. The challenge is how to replace that incentive with another—one that results in efficient public budgeting. Unfortunately, relying on an incentive presupposes discretion, and one person can never be sure what lies behind another person’s use of it.

In May 2015, a bipartisan group of U.S. Senators proposed to “give agency inspectors general the ability to grant $10,000 bonuses to federal employees who identify surplus or unneeded funding at their agencies.”[2] According to one the senators, “the bill helps combat the perverse incentive to spend leftover money by offering employees a positive incentive to help IGs save money.”[3] That perverse incentive is what made the U.S.S.R. so inefficient economically, as state-owned (i.e., socialist) and controlled (i.e., regulated) enterprises (as well as government agencies) operated likewise. In that political economic system, quotas both in budgets and widgets were the currency by which the system operated. Such bloat, inefficiency and mismanagement that weakened the Soviet Union from within also hampers good government at the federal level in the United States.

The proposed law would amend the 1974 Congressional Budget and Impoundment Control Act, which gave Congress more authority in the budget process. “The Act was inspired by Richard Nixon’s refusal to disburse nearly $12 billion of congressionally-appropriated funds in 1973-74 through the executive power of impoundment.”[4] Nixon cited the impact of the federal budget deficit on inflation as the reason for refusing to spend appropriated funds. The rationale is problematic prime facie because the U.S. president is tasked with enforcing the law rather than selectively enforcing it. Not contradicting the law would have meant going back to Congress with a recommendation that a law be passed withdrawing the surplus funds.

Even though the proposed law in 2015 would place the discretion with civil-service employees rather than politicians, a Democratic U.S. Senate aide said “that the amendment’s language may [allow] federal government administrators to defund key agency functions for ideological or political reasons.”[5] Civil servants are human too, and, besides, they can be subject to pressure from politicians higher up the food chain. In other words, we are back to the same problem—that which is inherent to discretion. Sen. Mike Enzi can have all the faith in the world in “the people holding the shovel who really know how to solve problems”—that “the folks responsible for administering individual programs know where the money is, what is needed and what is being wasted”—but all this does not necessarily mean that the civil servants would flag a budget item as “surplus” because it really would be wasteful to spend the money. Even a bureaucrat holding a shovel could provide an efficiency rationale for cutting one budget-item so as to get out of having to do a boring  ideologically-objectionable task or program. The bonus would be, well, a bonus. That is to say, a perverse incentive.

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[1] Andy Medici, “New Bill: Point Out Surplus Funds, Get a $10,000 Bonus,” Federal Times, May 21, 2015.

[2] Ibid.

[3] Ibid.

[4] Regional Oral History Office, “1974 Congressional Budget and Impoundment Control Act,” The Bancroft Library, University of California-Berkeley, March 7, 2011 (accessed May 23, 2015).

[5] Daniel Marans, “Rand Paul Amendment Would Increase Executive Branch Power,” The Huffington Post, May 22, 2015.