A Judicial “Poison Pill?”


And I’m here, to remind you, of the mess you left when you went away   Alanis Morissette   Jagged Little Pill

For those that are casual observers of the bloodsport that we call politics, a brief explanation of the words poison pill. Let’s say that the party in power in the House, say the Democrats, propose a bill, one which they can pass on their own, but on that would cause a real problem for GOP Senators having to vote on it in the Senate. During the “mark up” stage, when amendments are added, a GOP member offers an amendment that would require termination of abortions at eight weeks from pregnancy. That’s a “poison pill,” it assures failure of the bill in the House, since it is intolerable to the majority.

I think that whether intentionally or unintentionally, a federal district court judge, in a ruling on whether or not the Treasury Department has to turn over Trump’s taxes to House committees, the trial judge may have just inserted a poison pill that may prevent Chief Justice Roberts from allowing the Supreme Court to hear the case on appeal.

Here’s what happened. In this case, Trump’s obviously overpaid and under qualified legal beagles trotted out the same old lame shit that a sitting President is far beyond the reach of either congress of law enforcement. Not only can’t a sitting President be indicted, he can’t even be investigated. In their oral arguments, Trump’s lawyer specifically referenced the DOJ’s Office of Legal Counsel determinations that a sitting president can’t be indicted.

In the time honored tradition of my political mentor Jon Stewart, the trial judge called bullshit when he smelled bullshit. The trial judge not only excoriated Trump’s attorney for his specious, unfounded argument, he went a step further. In finely crafted legalese, he called the OLC’s memo’s on Presidential immunity from prosecution absurd bullshit, legally untethered from reality, and worth absolutely no value in a legal argument. Basically the trial judge said “Fuck the OLC and their memo’s,” not only can a sitting president be investigated, he can be indicted. And in doing so, he set legal precedent on the issue.

Which is huge, because for the first time, a sitting federal judge has weighed in on the issue of whether or not a sitting president can be indicted while in office. The Trump inspired appeal to the ruling was heard today in a federal appeals court in Washington, and once again, the Trump lawyers trotted out the same old, tired nag, claiming in this instance that a sitting president not only could shoot someone in the middle of 5th avenue, police couldn’t even stop him from shooting more people. This caused something close to scorn from at least one judge questioning the lawyer.

So, here’s where we sit. In a matter of weeks, the appeals court will issue a ruling on the case. And no matter how the court rules, the losing side is going to appeal the decision to the United States Supreme Court. And that appeal will present Chief Justice John Roberts with a can of worms large enough to sponsor an Arkansas fishing contest.

Actually, thanks to the original district court judge, Roberts and the Supreme Court will now have two issues to rule on instead of one. And in both cases, Roberts has the same problem, one “Brewski” Brett Kavanaugh. Even before being elevated to the SCOTUS, Kavanaigh’s previous writings made it clear that a sitting president enjoyed almost unlimited power, unchecked by wither congress or the courts. Since his elevation, Kavanaugh has made it perfectly clear that His Lowness’ fecal deposits have only the odor of fresh lilies and roses.

The first case, involving Trump’s taxes, is bad enough, since it’s such a red line for Trump. If Roberts sides with the conservatives, then Kavanaugh in fact has the deciding vote, and Roberts faces the reality of his reputation being the Chief Justice that approved of the Imperial Presidency. And voting with the liberals to forestall Kavanaugh would force Roberts to vote in a way, that under a more normal president, and with a more normal court make up, he would have voted differently.

But now, the lower court judge has forced Roberts’ hand by weighing in on another issue, the legitimacy of the OLC rulings prohibiting a sitting president from being indicted or prosecuted, and you can damn well count on the plaintiffs attorney bringing it up during oral arguments. Again, purely because of “Kegger” Kavanaugh, Roberts is in a no-win situation. Vote in favor of the OLC rulings, and he creates a world where the president is “above the law.” Vote with the liberals, and he puts what may be a personally uncomfortable restriction on presidential authority. Actually, in both of these cases, I find it quite possible that Chief Justice Roberts may be able to get some cover from another Trump appointee, Justice Neil Gorsuch, who does not appear to share Kavanaugh’s expansive views of executive authority, and may well want to use these voted to establish his independence from Glorious Bleater.

Granted, none of it may come to pass. The chickenshit way out would be to simply decline to have the Supreme Court hear the case, which would leave the lower appellate court ruling precedent case law on both rulings. But I don’t find that likely. Chief Justice Roberts is a serious jurist, who takes his job seriously. And this is the moment that legacies are made of. Enough that he can afford to allow himself to vote his conscience on some smaller matters without feeling the taint of Kavanaugh on his record. We shall see.

To know the future, look to the past. before the insanity of the 2020 election, relive the insanity of the 2016 GOP primary campaign, and the general election, to see how we got to where we are. Copies of  President Evil, and the sequel, President Evil II, A Clodwork Orange  are available as e-books on Amazon, at the links above. Catch up before the upcoming release of the third book in the trilogy, President Evil III: All The Presidents Fen

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