Donald Trump has been arguing that because he was still president in late 2020 and early 2021, he enjoys absolute immunity from prosecution in special counsel Jack Smith's election interference case — an argument that the U.S. Supreme Court examined during a Thursday, April 25 hearing.
That day, the justices heard oral arguments both for and against Trump's immunity claim — which some lower federal court judges have flat-out rejected, including Judge Tanya Chutkan (who wrote that U.S. presidents do not enjoy a "divine right of kings") and a panel of three judges for the U.S. Court of Appeals for the D.C. Circuit. But it remains to be seen what the High Court will ultimately decide.
Timothy Snyder, a historian at Yale University in Connecticut, is worried about some of the questions that the GOP-appointed justices were asking on April 25.
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During an appearance on MSBNC's "The Last Word," Snyder told liberal host Lawrence O'Donnell, "It's not our tradition that there can be people who are above the law…. And that is the danger which I think hasn't been quite specifically expressed here — that the idea of immunity means that there can be a person who is outside the whole system."
O'Donnell asked Snyder what was "going through your mind" during the April 25 hearing.
The Yale historian responded, "Number One, in holding a hearing on the idea of immunity, you're calling the concept into existence where it hadn't existed before. Number Two, the U.S. history point would be: If you are a textualist or something like that, there is nothing like immunity in the text of the Constitution."
Snyder continued, "But Number Three, most fundamentally, what the history of comparative law teaches us is that there is a tradition in which you say the Constitution is just there for us to wait and find out who is going to break it — and then, we're going to endorse that person and give them special rights. And that tradition — again, this is the history of comparative law — is precisely the Nazi tradition. And this is what worries me: that on January 6, 2021 and the weeks before that, we encountered an individual who tried to put himself above the law — and now, we're flirting with the idea that perhaps that might be alright."
The Yale historian lamented that on April 25, the High Court's right-wing justices offered "no real conceptual challenges" to "the idea that there is such a thing as this sort of personal immunity."
Snyder told O'Donnell, "That's precisely the definition of the fascist leader — the person who is outside the law…. I sometimes worry that Americans don't really see what they're flirting with because we're not looking around."
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