Weekly Roundup: SCOTUS Anoints a King Above the Law
In this episode of 'Straight White American Jesus Weekly Roundup,' host Brad Onishi discusses the significance of the recent SCOTUS ruling on presidential immunity and its implications for American democracy. Brad explains the connections to Christian nationalist movements and the Heritage Foundation's Project 2025, which seeks to reshape the executive branch under a potential Trump presidency. Co-host Dan Miller shares insights on the ruling's legal complexities and its longer-term implications. The episode concludes with a call to action for listeners to engage in activism ahead of the 2024 election.
Subscribe for $5.99 a month to get bonus content most Mondays, bonus episodes every month, ad-free listening, access to the entire 500-episode archive, Discord access, and more: https://axismundi.supercast.com/
Linktree: https://linktr.ee/StraightWhiteJC
Order Brad's book: https://bookshop.org/a/95982/9781506482163
00:00 Introduction and Special Offer
00:47 Political Commentary and Encouragement
01:32 Discussion on Military Actions Against Protesters
01:59 Heritage Foundation and Trump's Actions
02:43 SCOTUS Ruling and Its Implications
03:34 Personal Reflections and SCOTUS Analysis
05:55 Justice Sotomayor's Dissent
08:20 Implications of Presidential Immunity
10:54 Historical Context and Legal Precedents
19:03 Final Thoughts and Call to Action
32:50 Understanding Presidential Immunity
34:21 Implications of the SCOTUS Ruling
38:01 Long-Term Effects and Ambiguities
41:45 The Politicized Supreme Court
47:52 Christian Nationalism and the Heritage Foundation
59:15 Historical Parallels and Future Concerns
01:03:58 Reasons for Hope and Call to Action
Learn more about your ad choices. Visit megaphone.fm/adchoices
Brad here to say that we are offering access to Swag Premium for $50 for the entire year until Labor Day.
If you subscribe, you get access to our 600-episode archive, ad-free listening, an invite to our Discord server, bonus content on Mondays, and a bonus episode every month.
We do this show three times a week.
We're an indie show, an indie network.
We have no corporate affiliation.
We're doing it the best we can.
Our goal is to educate in order to activate, to connect the Ivor Tower to the grassroots.
You can subscribe for 50 bucks for the entire year.
That's less per month than that latte you bought on the way to work today.
Check it out.
Help us keep our flag up and join our community.
Well, Professor, my great friend, thanks for filling in and doing a great job.
Three things.
Number one, in spite of all this nonsense from the left, we are going to win.
We're in the process of taking this country back.
No one in the audience should be despairing.
No one should be discouraged.
We ought to be really encouraged by what happened yesterday.
The reason that so many anchors on MSNBC, for example, are losing their minds daily is because our side is winning.
And so, I come full circle in this response and just want to encourage you with some substance that we are in the process of the Second American Revolution, which will remain bloodless if the left allows it to be.
What specifically was he suggesting that the U.S.
military should do to these He says, can't you just shoot them?
Just shoot them in the legs or something.
And he's suggesting that that's what we should do, that we should bring in the troops and shoot the protesters.
Yes, in the straits of our nation's capital.
was suggesting that the U.S. military shoot protesters.
- Yes, in the straits of our nation's capital.
That's right. - The first voice you heard is of Kevin Roberts, leader of the Heritage Foundation, which is the think tank behind Project 2025.
He talks about a bloodless revolution if the left will allow it.
The second voice is Donald Trump's former Secretary of Defense, Mark Esper.
Who recounts how Trump wanted to have peaceful protesters shot, wanted American citizens to be gunned down in the streets of the United States in order to quell an uprising.
In conjunction, the two paint a stark picture of what may be to come in light of the Supreme Court's recent ruling on presidential immunity.
On today's episode, we not only provide our reactions to SCOTUS and this landmark ruling, but also connect it to the Heritage Foundation and a Christian nationalist attempt at American revolution that's been happening for over 60 years.
I'm Brad Onishi, and this is the Straight White American Jesus Weekly Roundup. and this is the Straight White American Jesus Weekly Roundup.
Welcome to Straight White American Jesus.
I'm your host, Brad Onishi.
My co-host Dan Miller is traveling this week, and so he will be with us later.
He definitely has thoughts on what happened at SCOTUS earlier this week, so you will hear from him, but we're not taping live together.
I want to start, friends, by just saying that I have the privilege of doing the show every week, and it requires digging into a lot of what are sometimes negative things, right?
The ins and outs of Christian nationalists all over the country and people who I think are trying to chip away at our democracy or marginalize, you know, certain vulnerable groups or enact violence against trans people or other queer folks, whatever it may be.
But I'll be very honest, even though I've been doing this for six years now, and it's something that is part of my day-to-day life, some weeks are harder than others.
And I think some of you are feeling that too, that bad news is part of life, but some weeks, some days are just different.
And for me, Monday was different.
As soon as I got the news in the morning here on the West Coast, I just felt distraught and a little bit overwhelmed.
So I come to you today, I think, feeling like many of you, trying to figure out what's next, what this means, and whether or not the 4th of July that just passed is going to be the last one that we celebrate or recognize or observe in the way that we do as what is supposed to be a democracy.
I want to start today by giving some thoughts on the SCOTUS ruling, and then I'll turn it over to Dan to give us what can only be framed as the very, very slivers of a silver lining and possible positive aspect, positive is the wrong word, but at least not apocalyptic aspects of what happened.
So Dan's going to do that for us.
I then want to spend the second part of the hour really connecting this to the Heritage Foundation and drawing on work by a scholar and their new book, Dr. Chelsea Eben, and their new book, The Radical Mind.
You're going to be hearing me talk about this book in the future.
I'm going to I'm going to be interviewing Dr. Evan.
And so this is not the last time, but there's a, there's a way here to connect what's happening with SCOTUS and Trump to just a 60 year war on democracy by the American right.
If you listen to this show, you know, I, I, I don't drink alcohol.
I stopped drinking during the pandemic.
So I am doing today with a stiff Diet Coke in my right hand and ready to take you through it.
Let's start with part of the dissent by Justice Sotomayor.
Today's decision to grant former presidents criminal immunity reshapes the institution of the presidency.
It makes a mockery of the principle foundational to our constitution and system of government that no man is above the law.
Relying on little more than its own misguided wisdom about the need for bold and unhesitating action by the President.
The Court gives former President Trump all the immunity he asked for and more.
Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent.
I think there's so much that's been said already about what happened here with this ruling.
And I think that many of you listening have digested a good number of cable news shows and editorials and op-eds and everything, Twitter threads and everything else.
So part of what I always aim to do as an educator and as a teacher with my students is to sometimes just take what feels like a dazzling and And really sort of chaotic energy surrounding us when we're trying to figure out what's going on with a set of issues or events or histories and say, hey, can we distill this, right?
Sometimes the exercise is to make things more complex, to not be reductive.
And then I think sometimes the exercise is to distill and to say, can we articulate what happened or what we're talking about or what's at stake here?
In a way that's clear, in a way that is succinct, because if we can distill it into something succinct, oftentimes it means we actually understand it.
So the way that I have arrived after days of reflection on this is that we are now in a place where we no longer live in what can be called a democracy.
And I know that many of you know that we have never really been a true democracy in every sense, that it's only been so many years since women could vote, since the Voting Rights Act itself prevented poll taxes and other things, since people who are not white, black, Asian, and so on could vote in full.
I recognize there continues to be reasons that we're not a democracy in terms of who can vote and why and how, the money that is involved, what it takes to be in office.
I'm aware of all that.
But let me come back to what happened this week.
This week, the Supreme Court ruled that when you are elected president, you are different than every other American in the country.
Now, I know, again, Go ahead.
Think about the ways, and go ahead and email me if you want.
Oh, the president has so many privileges.
They're not like us.
I get it.
Okay?
The president, you know, rides in Air Force One and cruises around with Secret Service detail, and they have so much privilege and access to resources, and they live in the White House, and that's all fine.
I would call those privileges of their office, right?
They get certain privileges.
Some of them seemingly justified.
Others, maybe we could talk about.
They don't need.
I mean, every job has this kind of thing, right?
If you are in one job, you get certain privileges.
If you are in another position, you get others.
It's how it goes.
Now, is that right?
Is that good?
We can have that conversation later.
Living in the White House is a privilege of the office of the president.
When you're not president anymore, you don't get that privilege.
But living in the White House means you live in a house in the United States, one reserved for somebody with a special office, but it doesn't make you qualitatively different as a citizen is what I would argue.
Yes, the president has access to the nuclear codes as long as they're president.
Okay.
That's part of the responsibilities of the job.
Okay.
When you're president now, you are not subject to law like everyone else.
Now, that might be de facto.
You might say, well, who's ever been subject to law?
Presidents get away with things all the time.
That's fine.
That's fine.
We can have that discussion.
I get it.
We now have de jure.
We now have, as a Supreme Court ruling, that if you are president, you and your office In your formal duties, whatever that means, are not responsible to the laws of the United States.
You are the law.
What you do as president is lawful, by dint of you being president.
There is no one else in the country, no senator, no congressman, no one, not even a Supreme Court justice, who can say that by acting in their role, acting as in their job, They are above the law, and in many cases, they are the law.
That is where we're at.
Here's how Harry Lipman put it.
Perhaps worst and most far-reaching is the perhaps the worst most far-reaching principle of all.
In dividing official from unofficial conduct, courts may not inquire into the president's motives, but bad motives are what distinguish criminal conduct.
They're the soul of criminal law.
So Lipman's pointing out here that we can't reach into the motives of the president in trying to figure out if their actions were official or unofficial conduct, making it such that we have to, I guess, listen to their comments and what they say about it.
So if they are expressing that what they are doing is part of their formal role as president, then I guess, for the most part, we have to take them at their word.
Here is more from the dissent.
The dissenting justices.
Looking beyond the fate of this particular prosecution, the long-term consequences of today's decision are stark.
The court effectively creates a law-free zone around the president.
Upsetting the status quo that has existed since the founding.
Now I want you to hold on to two things here, friends.
One is law-free zone, and the other is founding.
The president is a law-free zone, meaning what the president does is lawful.
Meaning what the president does is law.
Meaning, the president is above the law, and whatever the president does is lawful.
They can do whatever they want and not be held responsible because there is no law governing them.
They're different than you.
You don't live in a democracy if there's a citizen who's different from you because they cannot be prosecuted under law because the laws of the land don't apply to them.
You don't live in a democracy if everyone is not held accountable under the same set of precepts, consequences, policies, If someone is by law different, they are closer to a king, a monarch, an autocrat, than they are part of a democratic society.
The second is founding.
And I want to come back to this in a minute when I talk about the Heritage Foundation, but you already heard the leader of the Heritage Foundation talk about a second revolution.
So think about foundation and think about revolution.
I'm going to come back to that a little bit later.
Here's more from The Dissent.
This new official axe immunity now lies about like a loaded weapon for any president that wishes to place his own interests, his own political survival, or his own financial gain above the interests of the nation.
It's interesting here that the quote is from Korematsu, which is about incarcerating Japanese Americans, people of color in the United States, without law, without trial, without anything except for a presidential decree.
This like strikes really...
Strikes home for me as a Japanese American because they're quoting a case in which a Japanese American said to the United States Supreme Court, it's not lawful for you to put us in an incarceration camp without a trial, without a jury, without anything.
And the United States was like, yeah, president said he could do it.
So he did.
So don't talk to me about like, you know, it's so funny, man.
When you listen to like people say, oh, we've never had a president who would do stuff like this.
I'm thinking, I don't know.
I can think of at least one and I know there's others.
All right.
I'll continue just a little bit here.
The president of the United States is the most powerful person in the country and possibly the world.
When he uses his official powers in any way under the majority's reasoning, he now will be insulated from criminal prosecution.
The president is not like you.
The president is not a participant in society like you are.
Not because he gets more privileges in his job and he doesn't have to pay a mortgage because he lives in the White House and he has access to all these classified documents.
Nope.
Those are all just part of being president.
Doesn't mean that they're insulated from criminal prosecution until now.
Now, they are not like you.
Now they are the law, and you are subject to it.
Your status in society, by this ruling, makes you different.
Period.
Orders the Navy SEALs Team 6 to assassinate a political rival?
Immune.
That's in the dissent.
Sotomayor continues, even if these nightmare scenarios never play out, and I pray they never do, the damage has been done.
The relationship between the president and the people he serves has shifted irrevocably.
And every use of official power, the president is now a king above the law.
So if you don't believe me, you can just believe Justice Sotomayor.
The president is now a king above the law.
That's what, that's what the justice says.
Now, she prays that these things will never happen, but think about the clip that you heard at the top of this episode.
Mark Esper, former Secretary of Defense, on 60 Minutes, saying, "The president told me that he wanted the protesters shot.
The scenario has already played out." Think about January 6.
I want to make one more point before I turn it over to Dan and let you hear Dan who, who may provide just, well, I know will provide just a little bit of a counterbalance here to my, my analysis.
If you think about the last decade in American politics, there have been attempts to hold Donald Trump accountable.
He was impeached twice and acquitted twice.
Congress did not hold him accountable.
Even when Congress was attacked by rioters that he incited, even when Congress had to run for its life because people were coming to stop the certification of an election, Congress did not hold him accountable.
Mitch McConnell said, well, we have laws in this country and Donald Trump will be held liable by the laws.
Okay, great.
How has that turned out?
Well, in Florida, Eileen Cannon has delayed the documents case to the point that there is no chance he will be held accountable before he is president and before, according to Justice Sotomayor, he is a king above the law.
It does not seem that the case out of Atlanta and Georgia will come to trial before he is a king above the law.
The Supreme Court itself, in this immunity ruling, held up the case of Jack Smith, the special prosecutor.
Thus, the case will very likely not come before Trump is perhaps king above the law.
He was convicted of 34 felonies.
Okay, so maybe the justice system did hold him accountable.
Well, we learned the other day that Judge Marchand, with the approval of Alvin Bragg, is delaying sentencing until September, two months before he may be king above the law.
Now, you may say, at that point, he'll go to jail.
I highly doubt it, but we'll see.
Does not look like it.
I would be shocked if that happened, and it would send utter devastating tsunami-like reverberations through our public square if the judge put him in jail then, because it would be right before the election, and the country would be in severe unrest.
The criminal justice system did not hold him accountable.
Congress did not hold him accountable.
The Supreme Court is granting him immunity.
There is no one left to hold him accountable, friends.
There's no one left.
Except one.
And that's us.
We have an election that is still free, is still open, and still in question.
Literally no one else will hold this man accountable.
The only chance to hold him accountable at all is by not letting him be a king above the law.
Because as I'll explain at the end of this episode, there are plans for him to be exactly that, a king above the law.
I don't know about Joe Biden, and the speculation is hot and heavy.
I don't know if he will be the nominee.
Right now, he is.
Last week's debate was a slap in the face and it was a hard pill to swallow.
This week's SCOTUS ruling is a potential devastating news to the survival of American democracy.
My focus right now is on us as the last stop before we have a king.
It's July 5th.
It's the day after perhaps the last July 4th.
So whatever you think about Joe Biden or Kamala Harris or anyone else, my encouragement is...
That we have to stop this person from being a king above the law, because we, as a democracy, as a country, will not survive a second Trump term.
There will be a second American Revolution, and it will be absolutely devastating to our country and to the world.
Take a break.
We'll come back and hear Dan maybe cheer us up a little bit.
So there's no varnishing or putting a super positive spin or declaring a win on what I think has probably been the worst week for those who oppose Trump coming back to office that we've had since he was in office in 2016.
Right.
Anybody who's truly concerned about a second Trump presidency.
It's been an awful week between the developing stuff with Biden and the developing story about that and the SCOTUS ruling on presidential immunity.
Right.
And it's not hard to catastrophize.
That's my tendency.
My tendency, both personally and I guess analytically, is to find the worst-case scenarios.
It's not hard to go to dark places here.
We could just read Sonia Sotomayor's Descent and go there.
So what I want to do is try to kind of resist that urge.
I want to try to analyze the SCOTUS decision and parse not only what it means, but also what it doesn't mean in a certain sense, because there's a lot that's left undefined, and I think that that is the space Where we can look for sort of non-apocalyptic dimensions to this, if that makes sense.
I think I also want to try to distinguish some of the longer-term issues from the immediacy of the present.
I think that our collective anxiety about this decision has to do with the immediate fallout of this, and that's real.
I don't want to minimize that, but I also want to recognize that that's not the only dimension to this.
Um, and just to be fully transparent here, I think, you know, I'm trying to walk myself back from the edge a little bit, and I know a lot of you are too.
I've heard from people, I've talked with people, I've gotten emails from people, I've talked with friends who are basically like, what do we do with this?
Like, how do we sort of, you know, understand this?
And So I'm trying to do that for myself, and I guess in a certain sense, maybe I'm just inviting others to kind of listen in as I talk to myself.
So that's what I invite for all of you for the next few minutes here.
Some thoughts or reflections I have, and these basically are sort of like, in the immediate term, about what this means and doesn't mean.
In the longer term, about, as I understand it, again, as a, you know, not a legal expert, what this means, doesn't mean.
And then some also, finally, some reflections on like, what I think the GOP conservatives are, you know, elements of what they're trying to do with this decision as it relates to the 2024 election.
So, The immediate thing, and the thing that I keep coming back to, is we knew this was coming.
We did.
This decision essentially ensures that Trump won't have his subversion trial for election before the 2024 election, but we already knew this.
This has been not even just, you know, in the past year or so, but before that, we knew that that was unlikely.
Analysts and others had expected this for months.
And then, you know, SCOTUS basically ensured this outcome when they, number one, agreed to take up the case when they took up Trump's appeal.
And then, two, refused to rule quickly on it.
They followed their normal calendar timeline and so forth, essentially slow rolled this thing by seven months.
So that sucks.
I don't think they should have done that.
I've said that I don't think that they should have done that.
There is no reason they could not have made this ruling earlier.
And we'll come back to later about part of why I think that they chose not to do that.
But where are we expected to be in that regard?
And I think it's important to remember that it sucks.
It's terrible.
It's, for many people, kind of feels like the worst case scenario.
It's actually not the worst case scenario, but it feels like it is.
But we said for years, and others have said, that Trump won't be stopped in the courts.
He has to be stopped at the ballot box.
And we're still there.
I think the reason why that feels worse now than it might have a couple weeks ago is because of everything that happened with Joe Biden and where we are in terms of having a Democratic candidate who could actually face up to Trump.
That that's the real issue.
And I'll come back to that.
But I think it is important to recognize those two things are tied together.
But that that's our real pressing issue right now is what to do about Joe Biden.
OK, so I think that that's that's sort of one thing.
I think another thing is, staying with this theme of, like, we already knew this, is that most of this ruling also was not a surprise, right?
I've read analysts that are like, on originalist grounds, this ruling makes no sense, and so forth, in an analysis that, you know, said, you know, originalism is a dead letter with these justices.
Again, I think we knew that.
We've known for some time That conservative appeals to so-called originalism, to a dead constitution, all that sort of stuff, that they were nonsense, that they have been an ideological smokescreen and nothing more.
And when we recognize that, here this is.
And I've read analysts that say, look, yeah, on originalist notion that there's no basis for this decision.
If you're a non-originalist and affirms things like precedent in case law and evolving understandings and so forth, there's lots of precedent for this decision.
Right?
So I think that's one piece.
And so I think most of the original, as I say, most of the ruling wasn't a surprise.
And there was an opinion piece in CNN.
It was written by Norman Eisen, E. Daniel Perry, and Joshua Cobb.
I want to give them credit for this.
I found it very, there's a lot of good information in it, very useful.
What they pointed out, in terms of this not being a surprise, is the decision actually, in their words, adopted and modified an approach already developed by SCOTUS and an approach that, again, lots of analysts had expected to be used.
And so this is how they summed this up.
They said, in this decision, quote, and I'm quoting them now for the next bit, The court adopted and modified the approach it had previously outlined in the 1982 case Nixon v. Fitzgerald, establishing a president's civil liability.
All the parties, including Trump's team, had already conceded that a president does not enjoy immunity from prosecution for private acts, just as a president can be held civilly liable for private conduct.
In Nixon v. Fitzgerald, the Supreme Court held that a president enjoyed civil immunity for all, quote, official acts.
Now, in Trump v. United States, the court grappled with which official acts should also receive criminal immunity." End quote.
In other words, this standard or elements of it, this went a little bit further, right, or clarified some elements, but the standard was already there for civil issues.
This confirmed, again, what in my understanding as a non-specialist but reading specialist, many people thought is that there would be a parallel, that there would be an analog with criminal liability that matches what had been established with civil liability.
Now, a true originalist would go back and say that the Nixon versus Fitzgerald decision was itself problematic because it wasn't done on originalist grounds and so on and so forth.
We've got to just, I think, let go of the appeals to originalism as much as they drive us nuts and stop acting like conservative justices have ever been acting in good faith when they affirm originalism, right?
The precedent was there.
I don't think it's surprising.
And most legal analysts, as far as I've ever been aware, have long thought that something like this would be the case.
It had never been formally decided.
It had never been formally articulated.
But I've always heard people say, we don't think a president can be prosecuted criminally for actions undertaken, they would say, while in office.
But what they mean is official acts, right?
And I think it's important to recognize here as well that this ruling isn't just about Trump.
And I know Trump is like two inches in front of our face screaming at us all the time.
But it's not just about Trump.
It is a ruling about the presidency.
And part of the ruling, I think an important part, I think an actual necessary and beneficial part, Is that it, yes, it clears the way for a lot of bad things, potentially.
The whole, could Trump order SEAL Team 6 to take out political rivals, all of those kinds of questions and so forth, okay?
Stuff that John Roberts, you know, decried as sort of doom saying on the part of opponents, right?
But this ruling is also a bulwark against things like presidents targeting former presidents and political retribution after they come into office, right?
It's a bulwark against exactly the kind of things that Trump and the GOP have been promising their followers, right?
Day one, we're going to prosecute Biden for, you know, this and this and this and Afghanistan and this thing and that thing that he did.
And if you don't want a banana republic, You've got to make it so that presidents cannot simply turn around and jail or prosecute their predecessors as political enemies and so forth.
This is a piece of that.
And again, I'm trying to walk myself back from the edge.
If I'm looking for rays of light in what feels like a dark decision, that's one.
Okay?
Another piece of this is that Trump is crowing this as a victory.
Those of us who oppose Trump, again, it weighs heavily.
It gave Trump the delay he wanted, no doubt, okay?
And we know in every case, Trump's strategy has been delay, delay, delay, delay, delay, right?
But it's not the straightforward win that he seems to claim it is.
Again, remember, he appealed to the Supreme Court and asked them to dismiss the charges against him.
SCOTUS didn't do that.
Right?
Eisen, Perry, and Cobb, the same folks that wrote that opinion piece I cited earlier, they note that the court actually took a middle position between the claims of Trump and the prosecutors, right?
They did not dismiss the case against Trump on immunity grounds, right?
Trump's pretty absurd claim has basically been that anything he does while he is president He has immunity, and they did not accept that.
They did not grant blanket immunity for all actions undertaken by a president just because they're president, right?
In many ways, they provided the clarity that Smith wanted, right?
In other words, they laid down some groundwork and said, here's what we think some of the bounds of presidential immunity are.
Now, they slow rolled it.
I'm going to come back to that.
But they did that.
And here's the issue, right?
We don't know exactly what this means for Trump or other presidents.
It does not mean that he can't be prosecuted.
If it did, they would have just said this prosecution can't move forward.
They didn't say that, right?
Instead, what they did, and we've heard this and we're going to hear a lot about it moving forward, is the court outlined three domains of presidential acts, right?
So I'm reading again from the CNN piece.
It talks about Chief Justice John Roberts riding for the majority, as they say, put together a three-level immunity test.
So, number one, absolute immunity when the president is exercising, quote, his core constitutional powers, end quote.
Two, presumptive immunity from prosecution for his official acts, quote, that are not core to presidential duties, such as exercising powers given to him by Congress.
And three, quote, no immunity for his unofficial acts.
End quote.
OK?
What does that mean?
Well, they said that, okay, yeah, so he's got a bunch of allegations against him and they did rule that Trump's interactions with the Department of Justice, for example, are official and he has immunity for those.
Right?
Sorry, he's got immunity, that those are official communications and so forth, right?
But they said that in at least two other areas he had only presumptive immunity, right?
And those were his interactions with Pence, trying to keep Pence from certifying the election, and his communications, right?
Those are two issues that figure prominently in the election subversion case.
His interactions with Pence, putting pressure on Pence to try not to certify the election, and the communications, the argument that he basically told people to go and mount an insurrection against the Capitol.
Presumptive immunity means that yes, there's a presumption that he had immunity, but it can be demonstrated that he was not immune in those cases, that he does not have immunity.
So far from simply sinking the entire case against Trump, Does it complicate it?
Sure.
But it also clarifies it and it leaves it very clear that those elements can still proceed.
And Amy Coney Barrett said as much, right?
Said that, you know, she sees no reason why Trump's trial couldn't continue now sort of thing.
They also said that there were interactions, that presidential interactions with people outside the executive branch.
So in the Trump case, all the stuff in Georgia, for example, These would be evaluated on a case-by-case basis.
In other words, there is not an active presumption, just prima facie, that those are official acts and therefore presidents immune.
So there's there's a lot of room in this.
OK.
I want to come back to that, but I think that that's a real key, and this is why I say I think it's important to recognize, you know, not just what this case or this decision says, but what it doesn't say, what it leaves undefined, and we'll come back to that, okay?
But there's one other thing, and I don't know the answer to this.
This is a question that I have.
I'm sure others will answer it.
Some people might have the, excuse me, the answer ready to hand.
I welcome people.
Reach out, let me know.
Okay, so the president has immunity when exercising, quote, his core constitutional powers and presumptive immunity for his official acts and so forth.
Does that apply?
Like, how far down does that go in the executive?
Does every underling, does every presidential appointee, does every cabinet secretary, do they all have immunity?
As a mechanism within the executive branch, I could see somebody arguing that they're doing what the president told them, they're immune.
I think it's also pretty easy to argue that, number one, the whole, hey, we were just following orders rationale doesn't hold up, right?
If the president tells somebody to do something that they know violates the law, does his immunity sort of spill over onto them?
I don't know the answer to that.
What I do know is that there are going to be legal scholars and advisors and lawyers who are going to argue that they don't.
They're going to argue and say, yeah, sure, we can't prosecute the president.
But that functionary two levels down who carried out the act, they are criminally liable if they knowingly break the law or if they do something illegal and so forth, right?
I don't know the answer to that.
I don't know if that's true or accurate.
But what I do know is that at least right now, as I understand it, creates the possibility that presidential conduct could be tempered by those who would actually pay the price for illegal acts.
I don't hear SCOTUS saying here that everybody who in any way in this huge administrative apparatus of the state and the executive power, that everybody within that edifice enjoys absolute immunity when carrying out their official acts.
I just find that I think that's going to go pretty far, and I don't know, I think that creates a pathway for people to show some real concern if they're in those, of saying, well, sure, Donald, I get it, you're not going to be prosecuted, but I might be, or I might be fired, or I might face civil penalties, or whatever it is, okay?
And again, there may be some huge existing body of case law that's already settled that.
Given that the issue of presidential immunity has never been settled, I doubt that.
And so I think that that's another area that I think helps me walk back from the edge some, if I'm looking longer term, okay?
Let's go longer term.
Reasons to walk back from the edge again.
Remembering that this isn't just about Trump.
I know that Trump is there.
He's present.
He's sucking the oxygen out of the room.
But if I'm looking longer term, the court didn't spell out exactly where official acts end.
Again, I'm looking at the language that was used in the decision.
Absolute immunity when exercising core constitutional powers?
Folks, We're not even clear on exactly where that line of demarcation is.
Presumptive immunity from prosecution for official acts that are not core to presidential duties.
There's a lot of ambiguity there of what official acts are, what it means to be core or not core to presidential duties, how proximate to quote unquote core duties that they have to be and so forth.
The court didn't settle any of that.
And in this sense, they just essentially punted the hard questions back to lower courts.
And I think this is reflected in the headlines.
I have read a lot of headlines about this decision this week, right?
And I've read the more alarmist ones, the ones that are really near-term.
SCOTUS ensures Trump won't stand trial before the election.
Yep, that's true.
SCOTUS rewrites the Constitution.
That's arguable.
Again, I think it goes back to that question of did we ever think the conservatives were really originalists or not?
And so forth.
If one thinks that, you know, part of jurisprudence is interpreting the Constitution in contemporary terms and so forth, then it's not, you know, it's not out of left field.
It doesn't mean I agree with the decision, right?
It just means that it's not out of left field.
But you get these really kind of alarmist, apocalyptic headlines.
But I've also seen headlines that say, court recognizes some immunity for Trump or, you Court determines that Trump trial can continue.
Or others just saying the Supreme Court sends most issues back to the lower courts, right?
I mean, much more mundane sounding headlines that are also true.
And I think that that is something that I, in my alarmism, have to listen to, right?
The fact is, and again, we're in the longer term here, it will be years before we know what this ruling fully means for presidential acts.
Why years?
Because it's all going to have to go through the court.
It's going to have to be adjudicated just like the abortion stuff.
This is going to come back to the Supreme Court.
There are going to be cases that come debating what, quote, core constitutional powers are.
There are going to be things coming back saying, well, what exactly qualifies as an official act?
These cases are going to come back, right?
It's going to be years until we know what it means.
Again, none of that impacts Trump in the short term.
None of that impacts Trump in November or before November.
But if I'm looking for reasons, again, to see a potential non-apocalypticism of this, it's the fact that what this doesn't do is also important.
Don't get me wrong.
I don't agree with the ruling.
I think it's problematic on 50 different levels.
But if I'm looking for, let's call them reasons for hope, that is one, is that it doesn't settle that and it's going to come back.
Okay?
Here's another issue that I want to bring up, and this is what I'm calling the sort of politicized, non-political Supreme Court, right?
One analysis I read, I think this was on Politico, called this possibly the most political SCOTUS decision in history and referred to it as Bush v. Gore 2.0 and so forth.
Here's the interesting thing, there's no doubt to me, I talked last week about the SCOTUS and specifically the conservatives on SCOTUS and their abortion rulings, that basically they had chosen to punt Substantive rulings on the abortion issues before them, because in my view, they don't want to issue strong anti-abortion rulings right before an election where they know that that's really unpopular.
Here, I think that they actively slow-rolled this because they didn't want Conservatives or the GOP or others to say that they had somehow undermined the 2024 election by ensuring that Trump was embroiled in a criminal case, by even worse, maybe allowing him to be found guilty before an election, even though a majority of Americans say they wanted that trial to be concluded before the election.
So they basically know who they're voting for.
They know who these people are.
They slow rolled it.
And no doubt somebody like Roberts would say the reason they did that is the same reason they didn't mention Trump a lot in their decisions is this is about the office of the presidency.
It's not about one candidate.
It's not about one election.
We can't make it about one election and so forth.
So I think if you could sit down, you know, and have a beer or a cup of coffee or whatever he drinks with John Roberts, that's the kind of thing you would say.
And we know that Roberts in particular wants to deny the politicizing of the Supreme Court and deny factionalism, deny the reality that, you know, people like Samuel Alito and Clarence Thomas just are an arm of the GOP at this point.
But the reality is, obviously, that this was highly partisan.
That by choosing to slow roll this, by choosing to ensure that no decision came out before July, they had to extend their term, not by much, but they extended it even before releasing this decision.
And then to do the same thing they did with abortion, to leave the real and most complex and complicated and substantive questions unanswered and say, those need to go back to lower courts.
They ensured that Trump remains on the ballot.
This is the same court, as we've said, that ensured that places like Colorado have to have him on the ballot.
Okay?
So I think that's just another piece of this.
Separate from what the ruling means, I think it continues to show that the conservatives on the court They very much want to ensure that they cannot be accused by the GOP and conservatives of somehow making, you know, preventing Trump from being a viable candidate in the election.
So their non-political acts are highly partisan.
Please don't be fooled the next time John Roberts says something that sounds naive and doe-eyed about, you know, the non-partisan nature of the court.
Let me draw this together, some thoughts.
Again, we're where we have been for some time.
We are where we've always been.
It's vital to keep Trump out of office, and that's going to have to happen during the election.
We just cannot rely, and honestly, should not have to rely on the courts to do what the American people should do.
That's where we've been.
It's where we still are.
So why do I feel heartburn?
Why do I feel anxiety?
I think the real anxiety comes from the fact that we have a weak Democratic candidate for the 2024 election in Joe Biden.
We thought we did and it became brutally, painfully evident.
During that debate performance, and I think it's become more evident as he's tried to play that off and make jokes about his age and things like that over the last week.
I think that that's our real source of anxiety.
That's our real issue.
And I think that that Is where our focus should be.
In the near term, yeah, the SCOTUS stuff will sort itself out.
I read that the Department of Justice, as of now, says it will continue pursuing these cases even after the election, that these are cases that are pending, and it's going to continue moving forward, and Smith's going to continue moving forward, and so on.
All of that's important.
But I think all of us who recognize the danger that Donald Trump poses to our country, to our democracy, to everybody who's not straight and white and Christian, I think our focus has to remain on how do we win the 2024 election?
How do we win that?
I think that's the issue.
And I think that I think that some of the hand-wringing about SCOTUS is some misplaced anxiety because we're really nervous about that.
We're nervous about our prospects.
That's where our energy should be.
So, say, just trying to walk myself back from the edge, invite you to come with me on that walk, let me know.
I'd love to hear from folks, hear if, you know, if what I'm saying is pie in the sky, if I'm too Pollyanna-ish, or anything else.
I think, again, we've got to focus on the 2024 election.
That's where our energy should be.
All right.
As always, it's great to hear from Dan and to get a different perspective and appreciate his trying to bring forth at least some of the tiny slivers of a silver lining here this week.
I want to finish today by talking about the Heritage Foundation and Christian Nationalists' connection to this ruling and why they celebrated it openly this week.
So you heard Kevin Roberts, the leader of the Heritage Foundation.
So I want to remind everybody what the Heritage Foundation is.
And where it came from.
You've probably heard a lot about it on this show and others about Project 2025.
The Heritage Foundation has created what I think can be understood as a structure, a handbook, a comprehensive approach to the executive branch that is planning for a Trump victory here in a couple of months.
They have touted it as the biggest effort by a party that is not in power To plan to basically install a new understanding of the executive branch.
So I guess one way to think about it is what they've done is they've already mocked up and had blueprints and planned out every dimension of what it would mean to gut the executive branch and completely redo it as a different house, a different structure, a different approach.
Now the Heritage Foundation was founded in the early 1980s by Paul Weyrich and a bunch of others.
And I just want to connect some dots here because these are things you probably aren't going to hear from other outlets and sources.
The Heritage Foundation was created to fundamentally change American government.
I write about in my book, and many others have as well, and Nelson and so many others, about how Paul Weyrich and his work in the 60s, 70s, and 80s was really an attempt To take the country back from those who thought they didn't deserve it, but also to put forth a radical new understanding of what America is.
I quote Weyrich in my book talking about how they are here to overturn the present power structures and to basically revolutionize American government.
Paul Weyrich recounts words from Jerry Falwell, and these are quoted in Chelsea Eben's The Radical Mind, which is a book I mentioned at the top and we'll be talking about in the coming weeks.
The media had better understand that in another context, we would be shedding blood, but our commitment to the family has brought those of us differing religious views and backgrounds together to fight a just cause, to fight for the family.
So here's Falwell talking about how, in another context, blood would be shed, and he seems to be referencing Protestants and Catholics, but they've been brought together.
To fight a just cause.
And this really touches upon everything that the religious right and the folks like Paul Weirich were working towards, a revolution in American government.
You heard Kevin Roberts say that if the left allows it, this revolution will be bloodless.
We talked about, in our bonus episode, Russ Vought, who many think will be Trump's chief of staff and who is a big part of Project 2025 and its outlines.
Who talked about how he wants to go back 200 years.
He thinks the United States has not been on track, has not been in its constitutional right mind since 200 years ago.
The country is only about 250 years old, friends.
So these are people who don't want to go back to necessarily just the 50s or 60s, though those decades are certainly ones that provoked and helped cultivate their backlash to the progress made by women and people of color and, and black people and queer folks and others in the country.
These are folks who are like, now let's, let's go back to, I don't know, 1824.
Not 1924 or 1955.
When they say they want a second American founding, they're talking about instituting a government that we've never had in the country.
It's not like, let's go back to Reagan's 80s.
They want a revolution in terms of how this country works.
I'll quote Chelsea Ebbin from The Radical Mind, page 12, where they say this.
Weyrich and his cohorts were committed to sweeping changes and not to preserving the status quo.
They wanted political leaders to remake the political world in their or perhaps God's own image.
So their goal is to remake America, not into what it used to be, but into something it has never been.
The Heritage Foundation has been a Christian nationalist organization since the beginning.
Paul Weyrich is somebody who you've probably heard of.
He's the guy who is in that famous clip that goes around that says, I don't want everyone to vote.
Paul Weyrich was a traditional Catholic.
I write about this in my book.
It's in The Radical Mind.
It's in so many other sources on Paul Weyrich.
He was somebody who was so committed to a pre-modern Catholicism that he broke with the Catholic Church after Vatican II and the Mast went from Latin into the vernacular.
He was somebody who idolized his father to the point that he saw his father as the image of the real American.
The father who was a patriarch, who was the law inside his own family, who would never rely on a social safety net to help him or his family succeed, who would stand up to the church when he thought the church was out of line and would correct it.
But he was also a man who had no appetite for any kind of ecumenical inter-dialogue with other forms of Christianity that were not the right kinds of Christianity, people he would call non-Catholic Catholics.
If you were not the right kind of Christian, you were not a Christian at all in his mind.
It follows along with everything we talked about last week with, if you're not the right kind of Christian, you're from the devil.
He certainly had no vision for those Americans who were non-religious or otherwise religious.
For him, government was not about allowing people to practice their religion freely.
It was about having religion infused in government in the ways that the Catholic Church used to see its approach to politics.
It used to be about Christendom.
It used to be about imposition.
It used to be about Religion as the way to proper government, not government free from religion.
This is how Weyrich, the man who founded the Heritage Foundation, saw the political and public realms.
Now, I started today by saying that we no longer live in a democracy.
We no longer live in a country where every citizen is answerable to the same laws because the president is no longer answerable to our laws.
The thesis I would give you now, and the thesis that I think I've been making for years in my book and in the show, a thesis that follows along with the book that I'm drawing on today, Chelsea Evens, The Radical Mind, is that for a long time Christian nationalists like Paul Weyrich have fought To get rid of democracy so that there could be Christian nationalist imposition and, I dare say, Christian supremacy in this country.
I say it in my book, the goal is not democracy.
In fact, democracy is an obstacle for many Christian nationalists.
It is something that gets in their way.
It gets in the way of the proper structure they see the country as needing and having.
It gets in the way of power.
Here's page 15, The Radical Mind by Chelsea Eban.
All of this political worldview is premised on supremacism and is by logical extension necessarily illiberal.
Why?
Because if you have supremacist politics, then you are informed by one group's belief in its inherent superiority and by the desire to institutionalize the capacity to dominate and subjugate.
So let's just finish today by connecting some dots.
As soon as this comes down, the SCOTUS ruling, the leader of the Heritage Foundation gets out in the media and says, as long as the left will allow it, we'll have a bloodless revolution.
He's championing this ruling.
He's so happy.
This is what they want.
This is also the organization planning that has built Project 2025 along with 80 to 100 other co-signers.
Creating what is in essence a Christian nationalist vision for a unified executive led by a, as Justice Sotomayor says, a president who is now a king above the law.
Why would they want this?
Because they think that king above the law represents them and their interests and their identity.
They think they are inherently superior as Christians to others in this country.
That by dint of being Christian, they are the only real Americans.
By dint of being Christian, they can build a governmental structure in the only proper way it should be formed.
By dint of being Christian, they are different than you.
That's Christian supremacism.
That is a desire to dominate and subjugate others who are not Christian, who are not the right kind of Christian.
It is not an accident that the leader of the Heritage Foundation was so public after this ruling.
He is emboldened.
But the point I want you to leave with is this is something they've been working towards for 50 years or more.
The goal has been for society to be built on this structure.
A patriarchal head of family, who is the law within his own household.
That is built out into a church with a patriarchal leader whose decrees are doctrine in the religious realm, built out to a society where a patriarchal leader is the law of the land and has absolute power to instill his vision on everyone else.
Home, church, government, all built in the image of a supreme patriarchal Christian leader who is answerable only to God and makes answer to him everyone else.
Let's take a break and I want to give you one more thought before we go today.
About a hundred years ago, there was an act passed that was supposed to allow the government to engage in energetic action without any obstacle or impediment.
I quoted for you earlier, but I'll do it again.
And I'll come back to one of the things I wanted to remember today.
And that is that in the dissent, Justice Sotomayor talked about a misguided wisdom about the need for bold and unhesitating action by the president.
So giving the president immunity is supposedly giving the president the license for bold and unhesitating action.
Once again, a hundred years ago, there was an act that was meant to give the leader of the government access or ability for energetic action without impediment, without prosecution.
That act was in 1933.
It was the enabling bill or the enabling act in Germany.
It's largely seen as the bill that gave Hitler and the Nazis absolute powers that they now had in their the German government and their rule and control of that government.
The possibility for creating laws, changing the electoral system, changing the government's budget, And preventing public knowledge and criticism of military and naval expenditure.
The Guardian, in Manchester, Friday, March 24th, 1933, had the headline, Dictatorship Bill Passed in Germany.
Underneath it, it says, Threat of Public Education of Alleged Incendiaries.
So let's just keep it all in our mind at once, y'all.
You ready, y'all?
The top of this, we heard about a second American Revolution.
Kevin Roberts, Council Heritage Foundation.
We also heard from Mark Esper, former Secretary of Defense under Donald Trump, who said, shoot the incendiaries, or I mean, I'm sorry, the protesters.
We've had people like Stephen Miller and others talk about deporting 10 and 20 million people.
We've had Donald Trump say I'm going to be a dictator on day one.
We've had the threat of using the Insurrection Act against alleged incendiaries.
I mean, I'm sorry, American citizens.
The dictatorship bill passed in Germany went hand in hand with the threat of public execution.
We've already heard about Trump and his allies saying they're going to go after, they're going to get vengeance upon their political enemies, whether it's the Biden family or Hillary Clinton or anyone else.
The Enabling Act was for many the final nail in the coffin of anything like a Germany before absolute Nazi rule.
It gave the government the ability to answer to nobody, to create laws as it pleased, and for the president to do as he wanted without any obstacle in his way, including changing the electoral system.
Here's my question.
Who will get in Donald Trump's way?
Who can hold him accountable if he's president?
Who will stop him from doing anything he wants?
Congress?
Senators?
The Supreme Court?
State governments?
The military?
He can order, as the dissent in this case said, an assassination of his political rivals, and then he can pardon anyone who's involved so they are not.
Prosecuted, meaning he can order anyone to do anything he wants and he can pardon them because he is a king above the law.
If he says that funny things happen with an election in Arizona or Wisconsin, if he says he's going to stay in office and run for another four years, if he says he doesn't want to listen to what Congress just said about the budget or anything else, who will stop him?
1933, energetic action in the government.
2024, unhesitating action.
That's where we are.
And you can email me and say, oh, don't make the comparisons to 1933 Germany.
And I'm going to say, that's where we are.
I don't know else how to say it.
All right, y'all.
This is a tough one.
It's a tough week.
It's a tough hour.
It's a tough one for me to do.
But we got to do Reasons for Hope.
This week on Twitter, I put out a thing that said, hey, I want to know who's marching, who's protesting, who's doing more than that.
And I got so many great responses.
Got responses about people who are organizing to write postcards.
Responses about people working with indivisible groups, got responses, people who are knocking on doors for candidates running for state legislature and for mayor in deep red territory.
We are the reason for hope.
All of you who have not given in, who are taking action, are the reason for hope.
I heard from Senator, or excuse me, Representative Mallory McMorrow in Michigan, who is fighting for democracy and progressive causes in that state, and who talked all about the ways that it is about long-term organizing.
I'm going to have Representative McMorrow on the show very soon.
We are the hope.
We are the reason for hope.
We are the ones who can hold Trump or anyone else accountable.
No one else is going to do it.
Congress is not going to do it.
The Supreme Court is in the bag.
It's in the bag as a result of traditional Catholic organizers like Leonard Leo working for years to get it in the bag.
There's no one left but us.
I'm going to challenge you.
What's one thing you can do in the months up to November?
One thing you don't do already.
And some of you might be tapped out and I get it.
But what's one thing you can do?
Is it writing postcards?
Is it making phone calls?
Is it working for a candidate?
Is it getting the word out somehow?
Where's a place you can contribute?
Because we are the last hope and you are my hope as I sign off today.
Thanks for being here.
We'll catch you next time.
Before you go, you can subscribe for 50 bucks for the entire year.
That's less per month than that latte you bought on the way to work today.
