A short THREAD on a huge issue: A major thing missing to me so far in the #KennedyRetirement coverage is this: all Presidents who appoint justices might have those justices rule on their official acts, like policy initiatives or legislation. /1
But I cannot think of a prior example of a President appointing a justice who could rule on that President's personal exposure to serious criminal or civil liability. /2
Yet that's exactly what might happen here. Trump is currently under investigation on a range of fronts, from whether he obstructed justice to whether he colluded with Russia to whether his pre-presidency business dealings were on the up and up. /3
It's therefore not just possible, but I'd say it's likely that whoever Trump nominates may cast the decisive vote that determines whether Trump is civilly or criminally exposed on any of these things. /4
That could come via Trump being subpoenaed and fighting it, being indicted and fighting it, or even trying to pardon himself. All of those things, if they happen, would likely be resolved not just by the Supreme Court, but specifically by whoever Trump next appoints. /5
That is simply not a viable scenario for a democracy rooted in the rule of law. It's a simple concept: the accused may not choose who will be judge in their case. /6
In that sense, the mess of the Donald Trump presidency, which stems entirely from his own norm-breaking and potentially even law-breaking behavior, is now a colossal mess for our constitutional system. /7
The #KennedyRetirement is only 24 hours old so I don't propose to have all the solutions worked out to this problem here, but it's a problem that should be getting more attention and thought to what the right solutions are. /8
Because if it turns out Trump has broken the law but he can avoid accountability by choosing his own judge in a manner designed to insulate himself (and don't kid yourself if you think the Senate GOP is going to be a check on this), then we will have lost our democracy. /end
