The day after the Japanese attacked Pearl Harbor, President Roosevelt addressed the nation and the world in a speech delivered to a joint session of Congress. The opening line was:

Yesterday, December 7th, 1941 — a date which will live in infamy — the United States of America was suddenly and deliberately attacked by naval and air forces of the Empire of Japan.

The attack was surely one of the lowest points in the country’s history. Thereafter, the country resumed its belief that it was immune from foreign attack, a belief shattered again on September 11, 2001. Our government took steps to assure the country and the world that such an event could never happen again. In many ways the upending of our way of life, driven by the response to that day, continues some 23 years later.

During the anti-communist hysteria of the post-World War II period, Americans were terrified that the “enemy within” would destroy our democracy. That fear spawned and nourished Senator Joe McCarthy’s campaign to find and remove the communists he believed had infiltrated American institutions. You know the story, I’m sure.

You also know that on January 6, 2021, the United States Capitol was attacked, not by foreign troops or foreign terrorists but by Americans inspired by the lies of then President Donald Trump. Trump was desperate to stay in power and was prepared to use any means at his disposal to accomplish his goal. Recall that Trump said many times, and believed,

I have an Article II, where I have to the right to do whatever I want as president … But I don’t even talk about that.

The proof that he believed that can be found, among many other places, in his conduct following the 2020 election. The indictment alleging his crimes related to staying in power says:

70. In late December 2020, [Trump] attempted to use the Justice Department to make knowingly false claims of election fraud to officials in the targeted states through a formal letter under the Acting Attorney General’s signature, thus giving [Trump’s] lies the backing of the federal government and attempting to improperly influence the targeted states to replace legitimate Biden electors with [Trump’s]….

74. That afternoon, [Trump] called the Acting Attorney General and Acting Deputy Attorney General and said, among other things, “People tell me [Co-Conspirator 4] is great. I should put him in.” [Trump] also raised multiple false claims of election fraud, which the Acting Attorney General and Acting Deputy Attorney General refuted. When the Acting Attorney General told the Defendant that the Justice Department could not and would not change the outcome of the election, [Trump] responded, “Just say that the election was corrupt and leave the rest to me and the Republican congressmen.”

75. On December 28, Co-Conspirator 4 sent a draft letter to the Acting Attorney General and Acting Deputy Attorney General, which he proposed they all sign. The draft was addressed to state officials in Georgia, and Co-Conspirator 4 proposed sending versions of the letter to elected officials in other targeted states. The proposed letter contained numerous knowingly false claims about the election and the Justice Department ….CoConspirator 4’s letter sought to advance [Trump’s] fraudulent elector plan by using the authority of the Justice Department to falsely present the fraudulent electors as a valid alternative to the legitimate electors.  The Justice Department urged that the state legislature convene a special legislative session to create the opportunity to, among other things, choose the fraudulent electors over the legitimate electors….

76. The Acting Deputy Attorney General promptly responded to Co-Conspirator 4 by email and told him that his proposed letter was false, writing, “Despite dramatic claims to the contrary, we have not seen the type of fraud that calls into question the reported (and certified) results of the election.” ….

77. On December 31, [Trump] summoned to the Oval Office the Acting Attorney General, Acting Deputy Attorney General, and other advisors. In the meeting, [Trump] again raised claims about election fraud that Justice Department officials already had told him were not true—and that the senior Justice Department officials reiterated were false—and suggested he might change the leadership in the Justice Department.

78. On January 2, 2021, just four days before Congress’s certification proceeding, CoConspirator 4 tried to coerce the Acting Attorney General and Acting Deputy Attorney General to sign and send Co-Conspirator 4’s draft letter, which contained false statements, to state officials. He told them that [Trump] was considering making Co-Conspirator 4 the new Acting Attorney General, but that Co-Conspirator 4 would decline [Trump’s] offer if the Acting Attorney General and Acting Deputy Attorney General would agree to send the proposed letter to the targeted states. The Justice Department officials refused.

79. The next morning, on January 3, despite having uncovered no additional evidence of election fraud, Co-Conspirator 4 sent to a Justice Department colleague an edited version of his draft letter to the states, which included a change from its previous claim that the Justice Department had “concerns” to a stronger false claim that “[a]s of today, there is evidence of … significant irregularities that may have impacted the outcome of the election in multiple States.”

80. Also on the morning of January 3, Co-Conspirator 4 met with [Trump] at the White House—again without having informed senior Justice Department officials—and accepted [Trump’s] offer that he become Acting Attorney General.

81. On the afternoon of January 3, Co-Conspirator 4 spoke with a Deputy White House Counsel. The previous month, the Deputy White House Counsel had informed [Trump] that “there is no world, there is no option in which you do not leave the White House [o]n January 20th.” Now, the same Deputy White House Counsel tried to dissuade Co-Conspirator 4 from assuming the role of Acting Attorney General. The Deputy White House Counsel reiterated to Co-Conspirator 4 that there had not been outcome-determinative fraud in the election and that if the Defendant remained in office nonetheless, there would be “riots in every major city in the United States.” Co-Conspirator 4 responded, “Well, [Deputy White House Counsel], that’s why there’s an Insurrection Act.”

82. Also that afternoon, Co-Conspirator 4 met with the Acting Attorney General and told him that [Trump] had decided to put Co-Conspirator 4 in charge of the Justice Department. The Acting Attorney General responded that he would not accept being fired by a subordinate and immediately scheduled a meeting with [Trump] for that evening….

84. [Trump] moved immediately from this national security briefing to the meeting that the Acting Attorney General had requested earlier that day, which included CoConspirator 4, the Acting Attorney General, the Acting Deputy Attorney General, the Justice Department’s Assistant Attorney General for the Office of Legal Counsel, the White House Counsel, a Deputy White House Counsel, and a Senior Advisor. At the meeting, [Trump] expressed frustration with the Acting Attorney General for failing to do anything to overturn the election results, and the group discussed Co-Conspirator 4’s plans to investigate purported election fraud and to send his proposed letter to state officials—a copy of which was provided to [Trump] during the meeting. [Trump] relented in his plan to replace the Acting Attorney General with Co-Conspirator 4 only when he was told that it would result in mass resignations at the Justice Department and of his own White House Counsel.

The foregoing detailed allegations, chapter-and-verse, showing Donald Trump’s attempt to use the Justice Department to support his knowingly false claims of election fraud were described by the Supreme Court this way:

In dividing official from unofficial conduct, courts may not inquire into the President’s motives….

The allegations in fact plainly implicate Trump’s “conclusive and preclusive” authority. “[I]nvestigation and prosecution of crimes is a quintessentially executive function….”

… the Executive Branch has “exclusive authority and absolute discretion” to decide which crimes to investigate and prosecute, including with respect to allegations of election crime….

The President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to “take Care that the Laws be faithfully executed.” Art. II, §3. And the Attorney General, as head of the Justice Department, acts as the President’s “chief law enforcement officer” who “provides vital assistance to [him] in the performance of [his] constitutional duty to ‘preserve, protect, and defend the Constitution….’”

Trump’s threatened removal of the Acting Attorney General likewise implicates “conclusive and preclusive” Presidential authority. As we have explained, the President’s power to remove “executive officers of the United States whom he has appointed” may not be regulated by Congress or reviewed by the courts….

Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.

The Court thus saw no conflict or inconsistency in describing Trump’s attempts to force the Justice Department to support his knowingly false claims of election fraud as mere “discussions” implicating the DOJ’s authority to investigate “allegations of election crime” and the President’s duty to “take Care that the Laws be faithfully executed.”

The intellectual dishonesty underlying this treatment of the constitutional allocation of powers is blatant and undeniable. Pandora’s Box has now been opened. Ignoring the facts alleged in the indictment, the Court has adopted Trump’s view of Article II of the Constitution: the President can do whatever he wants. He is indeed above the law. Recall that in the end, the only thing stopping Trump’s plans to use DOJ to subvert the election was the threat of the DOJ leadership to resign if he persisted. If they had knuckled under to his unlawful demands, Trump might well have succeeded in overthrowing the election and restoring himself to power, thereby ending American democracy.

What the Court’s opinion did not acknowledge is that Joe Biden, not Donald Trump, is President of the United States. What is true of Trump as President is true of Biden as well. The Sword of Damocles has been unsheathed and it has two edges.

*****

It is not hyperbole to observe that July 1, 2024, will now rank alongside December 7, 1941, and January 6, 2021, as another day of infamy. July 1, 2024, was the day the American Constitution was destroyed by the United States Supreme Court.

The President of the United States is now free to use the Department of Justice to subvert American elections. But that’s not all. The Trump indictment addresses the Justice Department issues and concludes that absolute immunity attaches to attempts to use the Department to subvert elections

But remember, the President is the Commander in Chief of the Armed Forces of the United States, the largest and most powerful military force on the planet. The President is also the directive force behind all the federal agencies. He oversees the Cabinet — the people appointed by the President and who supervise those agencies.

What the Supreme Court has said about the power of the President over the Justice Department applies to the other federal departments and, indirectly, the agencies under them. If there are differences now between the U.S. President and a dictator, they are not apparent. If the President is absolutely immune from criminal responsibility for trying to or actually suborning the Justice Department to commit crimes, what prevents him from doing the same with the military?

The Court’s decision in Trump v. United States ranks alongside the Court’s worst opinions in history and may be the worst of all. Raising the President to imperial status is a graver threat to democracy than the decisions holding that “separate but equal” in education was adequate and that it was in the national interest and consistent with the Constitution to relocate into detention camps Japanese-Americans during World War II

Ben Franklin famously was asked, “”Well, Doctor, what have we got, a republic or a monarchy?” His response: “A republic, if you can keep it.”

 Turns out, we can’t.