The supreme scheme: How Alito and Thomas are fueling the ongoing Trump coup

Senator Dick Durbin, chairman of the Judiciary Committee, needs to act.

Supreme Court Associate Justice Sam Alito was just caught red-handed promoting Trump’s fascist “stop the steal” campaign to overthrow the 2020 election and end democracy in America by flying the upside-down flag at his home. He then went on Fox “News” and lied that it was his wife’s fault and that she did it because schoolchildren at a nearby bus stop saw a neighbor’s “F*ck Trump” yard sign.

In fact, as the Lincoln Project’s Steve Schmidt pointed out this past weekend:

“Mrs. Alito was so alarmed by the degradations and profane, yet protected speech that she went immediately home, and inverted the American flag signaling distress. Here’s the problem: there were no school buses and no school children on them in January 2021 in Alexandria, Virginia. Schools in the city were closed for a full year as a result of the pandemic and didn’t re-open until March 2021.”

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But Alito’s fingers were apparently far deeper in the January 6th coup attempt than most Americans realize. Trump lawyer Sydney Powell pointed out on Stew Peters’ rightwing YouTube channel that she, Louie Gohmert, and Kari Lake (among others) had filed a lawsuit against Vice President Mike Pence to prevent him from certifying the Electoral College vote on January 6th.

It was a legal attempt to try to do what Trump sent a mob to do when the legal strategy failed:

“We were filing a 12th Amendment constitutional challenge to the process that the Congress was about to use per the Electoral Act provisions that simply don’t jibe with the 12th Amendment to the United States Constitution, and Justice Alito was our circuit court justice for that. Louie Gohmert was the plaintiff in our lawsuit and we were suing the Vice President to follow the 12th Amendment as opposed to the Electoral Count Act.” (emphasis mine)

The 12th Amendment, ratified in 1804, is the provision under which a contested election for president gets thrown to Congress, as happened in the 1876 election where Democrat Sam Tilden got more electoral and popular votes than Republican Rutherford B. Hayes by the first count.

That election ended up thrown to the House because three states had submitted two sets of Electoral College votes (just like Trump’s are fake electors), so Congress cut a deal to end Reconstruction in exchange for making Hayes president, even though he arguably lost the election.

The lawsuit, filed by Gohmert, Kari Lake, and a handful of Republican operatives, demanded the delay so Republicans on the Supreme Court could decide who’d be president, just like they did in the 2000 election. It called for:

“[R]espondent Vice President of the United States to refrain from invoking the dispute-resolution provisions of the Electoral Count Act of 1887 … for the duration of this Court’s consideration of a timely filed petition for a writ of certiorari. As set forth in the argument below, the ECA violates the Electors’ Clause, the Twelfth Amendment, and the Constitution’s structural protections of liberty.”

If Alito would rule that Pence must defer to Congress per the 12th Amendment, the election of 2020 would be thrown to the House with each state having one vote. There, the presidency would have gone to Trump 27-23, because 27 states’ congressional delegations were then controlled by Republicans.

This was not a brand-new or hastily organized plan. I wrote on March 13, 2020 — eight months before the election — that Republicans I knew in Washington DC had informed me that the Trump folks were planning this exact strategy.

And, sure enough, here it was, with Sam Alito as the inside man.

The invasion of the House chamber by the “stop the steal” traitors was, by the theory of this plan, supposed to delay the counting of electoral college votes at least for a day, to give Alito time to act on the next day, January 7th. He and the courts would then rule that the 12th amendment took precedent to law made since then, Congress would declare Trump the winner, and that would be the end of the discussion.

But Nancy Pelosi got wind of the plot and blew it up by re-convening Congress at 8 pm to count the votes, just two hours after the last of the rioters had left the building and before Alito could rule. As Trump‘s senior attorney Powell told Peters:

“Nancy Pelosi had finagled to file an amicus brief in it — there had been inside goings on in Congress where I believe it was Steve Scalise and [Speaker Kevin] McCarthy [who] kept her from being an actual party; she wanted to work herself inside the case as a party but somehow that didn’t happen — so she got notice when we made our filing because she’d filed an amicus brief. And then everything broke loose and she really speeded up reconvening Congress to get the vote [count] going, or [Bill Barr’s] Justice [Department] might have issued an injunction to stop it all, which is what should have happened.”

In the end, Alito had to turn down the lawsuit on the morning of January 7th because Congress had already voted to certify the election for Biden.

As a result, we’ll never know how close we came to having a single corrupt Supreme Court justice overturn the election, but that flag flying outside his house gives us a pretty good clue as to what he may well have done the morning of January 7th had Pelosi not quickly acted the previous evening.

But Alito’s attempts to overturn our democracy weren’t limited to his support for Trump’s treasonous acts on January 6th. Were it not for Alito, Clarence Thomas, and at least two other Republicans on the Court, Donald Trump would by now have almost certainly been convicted in federal Judge Tanya Chutkan’s courtroom of seditiously trying to overthrow our government.

That federal criminal case was rapidly moving along when Trump’s lawyers made the absurd assertion that he was immune from prosecution for his attempted sedition because of a brand new, previously unheard of, and totally bizarre, made-up doctrine of presidential immunity. Even Richard Nixon didn’t have the cojones to try that one: he simply admitted his guilt and accepted a pardon to avoid going to prison.

It only takes four members of the Court to grant certiorari, allowing the Court to hear a case: four or more Republicans on the Court went out of their way to give Trump the delay he desperately needed. On February 28th, they granted cert and scheduled oral arguments for the very last day of their 2023-2024 session, the week of April 22nd.

To add insult to the injury to our republic, in oral arguments Alito dropped this little bomb on America, turning the case against Trump inside-out and claiming Trump should get a free pass to crime all he wanted:

“I’m sure you would agree with me that a stable democratic society requires that a candidate who loses an election, even a close one, even a hotly contested one, leave office peacefully, if that candidate is an incumbent?
“All right. Now if an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement, but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?
“And we can look around the world and find countries where we have seen this process, where the loser gets thrown in jail.”

Thankfully, at least for the historical record, the Attorney representing Jack Smith’s Justice Department, Michael Dreeben, immediately replied:

“I think it’s exactly the opposite, Justice Alito.”

But Alito, not Dreeben, is on the Court and is the decision-maker. Alito thus gave — and continues to give — Trump a desperately needed further delay by slow-walking his own part of the Court’s decision in the Trump immunity case.

Even if they rule against Trump, which everybody assumed would happen before Alito dropped that rhetorical turd into the proceeding, by giving Donny the delay he wanted, the Republicans on the Court reduced the chance that Trump will ever be held to account for his crimes.

While the Court typically releases their decisions during the summer, they have the option of waiting as long as they want — even until well past the November election date. So, if Trump is elected, he can fire Jack Smith and end the prosecution himself.

And it’s not like Alito and Thomas don’t have a stake in this fight. If Biden is re-elected, by the 2028 election Alito will be 78 and Thomas 80. Insiders have speculated that both would like to retire soon and have their replacements appointed by a Republican president.

And it won’t be the first time a corrupt Republican on the Court threw an election just to insure that body remained in Republican hands. You’ll recall, in 2000 Sandra Day O’Connor’s husband told friends that the reason she voted to stop the Florida Supreme Court-ordered recount and make George W. Bush president was simply because she didn’t want Al Gore to choose her replacement.

Arguably the most galling part of this entire pathetic drama is the response of Democrats with subpoena power in the US Senate. Judiciary Committee Chairman Dick Durbin, for example, issued a miserably weak request for Alito to recuse himself from cases having to do with January 6th, rather than demand the man resign and calling a hearing to make it happen.

We all know what would have happened if the shoe was on the other foot.

A Republican-controlled Senate confronting a Democratic Supreme Court appointee accused of corruption would be holding nationally televised public hearings, dragging that justice and his family and intimates before Congress for a grilling, and demanding both prosecution and impeachment.

That’s exactly what happened in the spring of 1969, when Republicans on the Senate Judiciary committee — along with a coordinated effort by President Nixon and Republicans in the media — accused the most liberal member of the Court, Abe Fortas, of being corrupt.

This was Nixon’s chance to flip the balance of the Supreme Court, while conservatives across the nation were still angry about the Brown v Board decision.

Fortas had taken a $20,000 payment from a man he’d defended years earlier; the man hadn’t been able to pay at the time, and finally came up with the money a year or so after LBJ put Fortas on the Court. Not exactly a crime, by any measure.

Fortas was also paid a $15,000 advance for a book he wrote, and Republicans alleged his wife had evidence of tax evasion, although it later turned out that charge was entirely manufactured out of thin air. No crimes here, either.

Nonetheless, the complaints about “Supreme Court corruption” and accompanying threats and pressure from Congressional Republicans against Fortas and his wife — and the firestorm in the media stirred up by Republican commentators — was so intense that Fortas resigned on May 14, 1969 just to get the torture to stop.

Consider that when you think about Alito’s wife hanging the upside-down flag, or her close association with hard-core rightwing causes including her alleged involvement in “Operation Higher Court.” Or Ginni Thomas’ involvement with the January 6th coup attempt itself, texting Trump Chief of Staff Mark Meadows:

“Watermarked ballots in over 12 states have been part of a huge Trump & military white hat sting operation in 12 key battleground states,” and “Biden crime family & ballot fraud co-conspirators (elected officials, bureaucrats, social media censorship mongers, fake stream media reporters, etc.) are being arrested & detained for ballot fraud right now & over coming days, & will be living in barges off GITMO to face military tribunals for sedition.”

Keep in mind that in the 2016 election, the singular thing that caused millions of Republicans — who otherwise considered Trump a fraud, con man, and sexual pervert — to vote for him was that Mitch McConnell was holding Merrick Garland’s seat on the Supreme Court open.

As Vox reported:

“One in five [2016] voters told CNN in an exit poll that the Supreme Court was one reason they had cast a ballot. Of the voters who said it was the ‘most important factor’ in their decision, 56 percent voted for Trump. According to the Washington Post, 26 percent of all Trump voters polled said that the Supreme Court was the basis of their decision.”

This fall, the corruption of the Supreme Court by corporate, billionaire, and fossil fuel interests should be at the top of Biden’s re-election campaign: polls show a majority of Americans are horrified by it.

Both Thomas — whose bribe-taking in exchange for his votes on Citizens United and other cases is well documented — and his rightwing buddy Sam Alito must resign or face impeachment. If Republicans could pull it off against a totally innocent Abe Fortas back in the day, Democrats should be able to do it now against two guys whose corruption is obvious to everybody.

Democrats in Congress — particularly on the Senate Judiciary Committee — need to grow a damn spine and make it happen.

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