“A Key Assumption”


Mark. It. Down. April 25, 2024

On this day, oral argument was held before the Supreme Court, in Trump v. The United States. The critical question: whether former President Trump was (and is) immune from prosecution under the criminal law.

I predict this extraordinary argument will redound in history as a reflection point for our nation, marking our turn away from the recent drift towards despotism, back towards democracy (and rationality).

In this space, soon enough, I will provide more of an analysis but, for now, I direct your attention to a short, important colloquy between the ineffable and sonorous Justice Sonia Sotomayor and US Justice Department Attorney Michael Dreeban, starting at minute 1:41:11 of the recording here.

My own transcription of the segment follows:


Sotomayor: A stable, democratic society needs the good faith of its public officials, correct?

Dreeban: Absolutely.

Sotomayor: And that good faith assumes they will follow the law?

Dreeban: Correct.

Sotomayor: Putting that aside, there is no failsafe system of government. Meaning, we have a judicial system that has layers and layers and layers of protection for accused defendants in the hopes that the innocent will go free.

We fail. Routinely. But we succeed more often than not. In the vast majority of cases, the innocent do go free. Sometimes they don’t and we have some post-conviction remedies for that. But we still fail. We have executed innocent people.

Having said that, Justice Alito [already] went through, step-by-step, all of the mechanisms that could potentially fail. In the end, if it fails completely, it is because we have destroyed our democracy on our own. Isn’t it?

Dreeban: It is, Justice Sotomayor.  

I think there are additional checks on the system. Of course, the constitutional framers designed a separated powers system in order to limit abuses. I think one of the ways abuses are limited is accountability under the law for criminal violations, but the ultimate check is the goodwill and faith in democracy. And crimes that are alleged in this case, that are the antithesis of democracy, that subvert it, undermine that.

Sotomayor: And encouragement to believe words that have been somewhat been put into suspicion here, that no man is above the law, either in his official or private acts.

Dreeban: I think that is an assumption of the Constitution.

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