Yesterday, in the Supreme Court of the United States, Americans witnessed the hypocrisy of “Constitutional originalists” from the very top of Bullshit Mountain.  The most egregious example of their own judicial philosophy, oddly, had nothing to do with the most absurd arguments put forth by Donald Trump’s attorney John Sauer’s response “it depends” to the question whether a sitting president could order Seal Team Six to assassinate a political opponent.  Or “conservative” justices who appear to believe there must be hearings to determine whether overturning a free and fair election could be considered an official presidential act.

While questioning Michael Dreeben, who argued the case on behalf of special counsel Jack Smith’s office, Justice Neil Gorsuch raised the following hypothetical.

So, for example, let’s say a president leads a mostly peaceful protest sit-in in front of Congress because he objects to a — a piece of legislation that’s going through.  And it, in fact, delays the proceedings in Congress.  Now, under 1512(c)(2), that might be corruptly impeding a proceeding, an official proceeding. Could — is that core and therefore immunized or whatever word, euphemism you want to use for that?

Keep in mind Gorsuch graduated from Harvard Law School, practiced law at a private firm for 10 years, was the principle deputy associate attorney general at the U.S. Department of Justice and served on the 10th District Court of Appeals before his appointment in 2017 to the Supreme Court.  First of all, with such a distinguished education and experience one would think he would be more precise in his questioning of a witness or solicitor.  What the hell does “in front of Congress mean?”  If it refers to a peaceful sit-in in front of the Capitol, there is little if any chance it would delay a congressional proceeding.  More importantly, neither the president or any other citizen would have to rely on immunity because this is not crime.  If only the ghost of Joseph Welch, chief counsel for the U.S. Army during the McCarthy era had appeared and asked Gorsuch, “Have you no common sense, sir?”

Equally puzzling is Gorsuch’s supposition that legislation is considered “in front of Congress.”  It never works that way.  The only joint sessions of Congress are generally ceremonial (e.g. counting of the electoral votes).  The introduction, debate and passage of bills occurs in either the House or Senate.  To which, Welch’s specter would have asked, “Have you no sense about how the legislature works, sir?”

What the confused justice must have been referring to is something akin to the June 22, 2016 sit-in organized by the late congressman John Lewis in protest of then Speaker Paul Ryan’s refusal to bring a gun safety bill to the floor for a vote in the aftermath of the mass shooting at an Orlando, Florida nightclub.  To avoid CSPAN televising the protest, GOP speaker pro tempore Dan Webster called for a recess.  If that was Gorsuch’s intent, this self-proclaimed originalist should know that the Constitution speaks directly to this issue.

First, let’s address the issue whether Lewis and his “good troublemakers” committed a crime.  Article I, Section 5 states, “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour (sic), and, with the Concurrence of two thirds, expel a member.”  The current rule under which the House operates, in effect at the time of Lewis’ protest, allows all current and former members of the House to be on chamber floor without prior permission.  Proof of this provision was George Santos’ surprise appearance on the floor of the House during this year’s State of the Union address after having been expelled the previous December.  [NOTE:  On April 12, 2024, Representative Anthony D’Esposito (MAGA-NY) introduced a resolution that would amend House rules to “deny certain privileges” to former members who had been expelled.  According to D’Esposito, the purpose of the amendment is to “…establish new standards by which expelled frauds are barred from further staining this storied institution.”  Much less being a continuing embarrassment to his own party.]

How did the MAGA controlled House feel about sit-ins in their chamber following Trump’s election as president?  According to Wikipedia: 

On January 3, 2017, the House convened the 115th Congress and passed rules intended to prevent future sit-ins. The new rules included language against disorderly or disruptive conduct, in addition to bans against members of Congress taking pictures and video on the House floor, though an exemption for the latter occurs for events such as the State of the Union addresses. Fines are also included within the new rules, with $500 being mandated for first offenses and $2,500 for each additional offense.

All perfectly consistent with Article I, Section 6 which authorizes each chamber to make its own rules.

But the 2017 rules amendment applies only to members of the House.  Which brings us back to Gorsuch’s question about the president acting in a similar manner. To which Joe Welch’s apparition would surely materialize for a third time.  “Have you no sense of the separation of powers, sir?”  Welch would find it interesting that Gorsuch inserted the word “peaceful” into his question.  Why?  Because aiding and abetting a “violent” disruption of a congressional proceeding is no longer a hypothetical.  Which makes it all the more shocking that the MAGA justices would not immediately agree January 6, 2021 was not subject to any level of presidential immunity.

What else did Gorsuch forget?  According to his theory of originalism the Constitution only protects those rights specifically enumerated in the document with amendments and imposed on the states per the 14th Amendment.  Article II, powers of the executive, does not give the president unfettered authority to go to the floor of either chamber.  Consider the following.  Article II, Section 3 states:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper.

Does a strict constructionist such as Justice Gorsuch not understand the meaning of the words “convene” and “adjourn?”  As was the case on September 11, 2001, President George W. Bush could have, if Congress had not voluntarily adjourned for its own safety, ordered the House and Senate to vacate the Capitol.  Or if Congress was in the middle of one of its many, lengthy scheduled recess, he is also authorized to bring them back to Washington to address a real or even perceived emergency.  However, it does not authorize him to go to the floor and disrupt a legislative proceeding. Ironically, instead of sending an armed mob to do his bidding on January 6th, he could have simply adjourned Congress and argued he was authorized to do so based on the language in Article II, Section 3.  Despite the political implications, there may not have been grounds for a second impeachment since adjourning Congress was neither a high crime or misdemeanor.

Equally important, when he is authorized to interact with the Congress, he cannot do it on a whim, the best example being the State of the Union address.  Article II, Section 3 does not specifically require an in-person address to a joint session of Congress.  Then how does this happen?  Again, according to Wikipedia:

Because the address is made to a joint session of Congress, the House and Senate must each pass a resolution setting a date and time for the joint session. Then, a formal invitation is made by the speaker of the House to the president typically several weeks before the appointed date.

Simply put, Justice Gorsuch, the president must be invited to be in either chamber, just the same as any foreign or domestic dignitary (e.g. the Pope or General Douglas McArthur) Therefore, if as he had threatened, Trump followed the mob to the Capitol on January 6th and taken the floor of either house uninvited, he would have violated his oath to faithfully defend and protect the Constitution.  What’s more, this applies not only to the legislative branch.  Imagine if Alexandria Ocasio-Cortez led a sit-in in the Cabinet room to disrupt one of Trump’s meeting because she disagreed with his family separation policy on the Southern Border.  Is there any question Trump would order Bill Barr to arrest her and charge her with criminal behavior? Or if AOC had led a sit-in that disrupted arguments before this Court in the Dobbs case?

Justice Gorsuch, to go back to your hypothetical about whether a president leading a “mostly peaceful sit-in” to disrupt a legislative proceeding is a crime, the answer is simple.  HELL, YES.  Whether he should be prosecuted is a decision for members of Congress to make (through a criminal referral to the Justice Department) and the Attorney General to decide whether to indict based on the facts and the law. 

Most states require continuing legal education for members of the bar to maintain their certification.  Florida statutes specify the following:

(f) Education. The applicant must complete 50 hours of approved continuing legal education since the date of the last application for certification. Accreditation of educational hours is subject to policies established by the civil trial law certification committee or the board of legal specialization and education.

Based on the nonsense presented by Gorsuch and other members of the panel yesterday, perhaps the same standard should be applied to state and federal justices including those on the Supreme Court.  The “Introduction to Constitutional Law” course I took as an undergraduate at the University of Virginia seems like a good remedial class for Justice Gorsuch.  Of course, there would have to be a module on “conflicts of interest” for Clarence Thomas and Samuel Alito.

For what it’s worth.
Dr. ESP