Alito: Criminalizing Close Election Contests Would Destabilize Entire Foundation Of American Democracy

by Brianna Lyman

Supreme Court Justice Samuel Alito suggested Thursday during oral arguments regarding presidential immunity that criminalizing individuals just because they question government-run elections would destabilize true democracy.

Special counsel Jack Smith indicted former President Donald Trump for questioning the administration of the 2020 election. The high court is now hearing challenges as to whether presidents have immunity from criminal prosecutions for actions taken while in office that fall within the scope of their presidential duties.

“Let me end with just a question about, what is required for the functioning of a stable democratic society, which is something that we all want?” Alito began. “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 the incumbent?”

“Of course,” attorney Michael Dreeben said.

Justice Alito hypothesizes what could happen if presidents don’t have criminal immunity:

“If an incumbent…knows…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?” pic.twitter.com/zXSJEGMNOo

— The Recount (@therecount) April 25, 2024

“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 in 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?” Alito asked. “And we can look around the world and find countries where we have seen this process where the loser gets thrown in jail.”

“So I think it’s exactly the opposite, Justice Alito,” Dreeben said. “There are lawful mechanisms to contest the results in an election and outside the record but I think of public knowledge, petitioner and his allies filed dozens of electoral challenges and my understanding is lost all but one that was not outcome determinative in any respect. There were judges that said in order to sustain substantial claims of fraud that would overturn an election results that’s certified by a state, you need evidence, you need proof and none of those things were manifested. So there’s an appropriate way to challenge things through the courts with evidence, if you lose, you accept the results, that has been the nation’s experience.”

“Thank you,” Alito interjected.

Alito appears to warn Democrats that should the high court rule that certain presidential acts are not covered by presidential immunity and Smith’s lawfare case against the former president may continue — true democratic norms would be decimated as partisan politicians could weaponize the justice system to target their opponents.

Smith indicted Trump on charges of conspiracy to obstruct an official proceeding, obstruction of and an attempt to obstruct an official proceeding, and conspiracy against rights. In simpler terms, Smith alleges that Trump’s claims that the 2020 election was stolen were false and that Trump knew they were false.

To support his claims, Smith alleges that since federal agencies like the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency — which meddled in the 2020 election — told Trump the election wasn’t stolen, and he should have taken that at face value, as pointed out by Federalist Senior Editor John Daniel Davidson

But objecting to elections is a tale as old as time.

Failed presidential candidate Hillary Clinton still claims the 2016 election was stolen while Democratic Reps. Jim McGovern, Pramila Jayapal, Raul Grijalva, Sheila Jackson Lee, Barbara Lee, Maxine Waters — who also called the 2000 election “fraudulent” — and Jamie Raskin all objected to Congress’ certification of electoral votes in 2017 that formally declared Trump the winner, my colleague Tristan Justice details.

The 2004 election was also considered “stolen” by New York Rep. Jerry Nadler who went so far as to declare voting machines need to be investigated.

And even after the Supreme Court ended Al Gore’s attempt to overturn the outcome of the election, there were no steps taken to throw Gore in jail for challenging the contest.

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