Is it possible that establishment operatives believe they are immune to any consequences for their persecution of former President Donald Trump? This question arises as Justice Brett Kavanaugh raised concerns about the potential dangers of politically motivated prosecutions of presidents during a recent Supreme Court hearing on presidential immunity.
“It’s not going to stop,” Kavanaugh predicted.
The justice appointed by Trump conveyed that forecast to attorney Michael Dreeben, a former deputy solicitor general at the Department of Justice. As per his faculty profile at Harvard Law School, Dreeben served under special counsel Robert Mueller in the investigations stemming from the Russia “collusion” conspiracy — the unfounded claim that Trump’s campaign collaborated with Russia to sway the 2016 presidential election.
During the recent proceedings, Dreeben advocated for special counsel Jack Smith, the most recent establishment-chosen legal expert tasked with dismantling Trump’s anti-establishment political movement. In this specific instance, Smith has charged Trump with allegedly trying to overturn the contested outcomes of the 2020 presidential election, pointing to the actions of the then-president and the incidents surrounding the Capitol breach on Jan. 6, 2021.
Essentially, the downward slope Kavanaugh anticipated has now materialized. The peril is not looming in the future but is currently unfolding. Nevertheless, the justice’s statement underscored that lacking a clear standard to differentiate between public and private conduct, presidents could be perpetually vulnerable to political reprisal.
“It’s going to cycle back and be used against the current president or the next president and the next president and the next president after that,” Kavanaugh said.
Kavanaugh, undoubtedly, presented a compelling argument – at least in principle. In a constitutional republic with democratic elections, those in power have a motivation not to oppress their political adversaries. It is expected that those in power will eventually lose it. However, when it comes to Trump and his supporters, establishment figures have not acted as if they anticipate losing power.
For example, on April 16, the Supreme Court deliberated on cases related to the DOJ’s aggressive application of a 22-year-old federal obstruction statute in the prosecution of over 300 Jan. 6 defendants. This statute was unrelated to the events of Jan. 6, but the DOJ has twisted its original purpose to charge Jan. 6 defendants with serious felonies carrying up to 20 years in prison.
If the Supreme Court were to reverse the convictions of the Jan. 6 defendants under this statute, two out of the four charges against Trump by Smith would be eliminated. In essence, President Joe Biden’s DOJ has taken an extremely punitive approach towards Trump and the Jan. 6 defendants. Therefore, if Kavanaugh’s argument holds true, Biden should be wary of potential repercussions.
