Dissecting Trump and Alito’s chummy phone call, which happened a mere day before Trump asked SCOTUS to dismiss his criminal sentence.

On Tuesday, Supreme Court Justice Samuel Alito had a little phone chat with President-elect Donald Trump. It happened just before Trump’s lawyers filed an emergency motion with the Supreme Court to put a stop to Trump’s criminal sentencing in New York state court, which is currently scheduled for Friday morning. In many universes this would be suspect, but not to worry—in this one Alito later assured reporters that it was really just a casual chinwag about a routine job reference for one of his former law clerks. “William Levi, one of my former law clerks, asked me to take a call from President-elect Trump regarding his qualifications to serve in a government position,” Alito told ABC News on Wednesday. “I agreed to discuss this matter with President-elect Trump, and he called me yesterday afternoon.”

Is William Levi up for some high-ranking and essential post that would demand the future president’s careful scrutiny—like, say, attorney general or a Supreme Court seat? No, no he is not: ABC News reports that he may be tapped as general counsel for the Department of Defense, a post of middling importance. Is Levi a professional wildcard—some unknown quantity who requires vetting by the president-elect himself, or someone who demands that his every former employer be contacted by the president-elect himself? Again, no. Levi clerked for Alito 13 years ago and currently works as a Big Law partner. He already served in the first Trump administration, as chief of staff to then–Attorney General Bill Barr. He worked for GOP Sen. Mike Lee before that. He is, in other words, a known quantity.

So why is it that the president-elect vetted a midlevel lawyer with a sitting Supreme Court justice, just as that same president-elect had a case rocketing to the high court?

The most obvious answer is: Because who is going to stop him? Performative flouting of the ethics rules that demand the appearance of neutrality, barely a week after the chief justice himself claimed that the courts had a key role to play in preserving public trust? That stuff is catnip for authoritarians whose images are built upon regularly proving that the rules do not apply to them. It should surprise nobody that Trump wanted a call with Alito. Regrettably, it should also surprise nobody that Alito took it.

Beyond that flex, we can think of two other reasons for the call. First, Levi played a major role in marshalling federal law enforcement to subdue the insurrection on Jan. 6, summoning the FBI for backup after rioters overwhelmed the Capitol Police. Perhaps this action landed him on Trump’s blacklist, and the president-elect wanted confirmation that Levi would serve as a loyal foot soldier in his second administration, with all that Jan. 6 business forgiven and forgotten. As a steadfast champion of the president-elect’s agenda, Alito is well positioned to vouch that his former clerk remains a true believer in the cause despite his regrettable lapse four years ago. The justice, after all, shares Trump’s paranoid loathing for the so-called deep state that is, allegedly, forever plotting to sabotage the past and future president. Alito would surely know if his own former clerk was a Never Trumper in MAGA clothing.

It is also possible that Trump sought to flatter Alito by calling upon him as a character reference, part of his long campaign to butter up the justices whom he wants to retire.
The charm offensive worked on Justice Anthony Kennedy, convincing the erstwhile swing vote that his seat would be better off in Trump’s hands. He failed to nudge Justice Clarence Thomas off the bench in his first term, as he’d hoped—but stacking his administration with former Thomas clerks sent the message that, whenever the justice is ready, Trump can be trusted to swap in a suitable replacement. (So, presumably, did his decision to humor Ginni Thomas by opening the West Wing to her clique.) Don’t be surprised if the president-elect appoints a boatload of former Alito clerks to the executive branch and judiciary in the coming months, or makes overtures to Martha-Ann Alito for a private lunch at the White House.

Whatever the true reason for Tuesday’s call, both men must have understood the questionable optics. Remember back when Bill Clinton met briefly on an airport tarmac with then–Attorney General Loretta Lynch and it somehow represented the demise of all remaining public trust in the Justice Department? Us too. And yet a Supreme Court justice chatting with a party to an emergency matter pending at the court this week is apparently of no concern now. As Alito doggedly insisted, it’s all good, because he and Trump “did not discuss the emergency application he filed today, and indeed, I was not even aware at the time of our conversation that such an application would be filed.”

The number of subjects about which one man on Capitol Hill can remain unaware is truly astonishing. Especially given that Trump and his lawyers had telegraphed that emergency filing well before Tuesday; Alito is evidently the only man in Washington who didn’t know it was coming. Recall that the justice was similarly unaware of his wife’s penchant for flying flags associated with the insurrection, as he indicated last spring when he declined to recuse himself from Jan. 6–related cases. “My wife is fond of flying flags,” he wrote in a letter declining to recuse from these cases. “I am not.” He went on to add: “As I have stated publicly, I had nothing whatsoever to do with the flying of that flag. … I was not even aware of the upside-down flag until it was called to my attention. As soon as I saw it, I asked my wife to take it down, but for several days, she refused.” Maybe Alito also asked the future president to hold off on the ex parte phone calls, but he refused.

To be frank, we doubt that Trump and Alito actually conducted any overtly untoward business on this call. The stakes for Trump in the pending case are low anyway: Justice Juan Merchan, who is presiding over the New York hush money trial, has indicated he will sentence Trump to unconditional discharge—no prison time, fines, or probation. But Trump would still rather the whole thing just go away. The sentencing will be the formal start of Trump’s judicial designation as a felon, and this, his lawyers claim, must not be allowed to occur, due to the “public stigma and opprobrium” it would inflict on his “constitutionally contemplated leadership role.” He is, in short, immune from all the things in all the ways, says his top lawyer, John Sauer, whom Trump has now nominated to serve as the nation’s solicitor general. No doubt Sauer’s office will soon be staffed up with many, many former Alito clerks (all of whom will need the president to check their references). Maybe he can just set up a phone tree with the six justices behind the immunity decision from last term so they can vet clerks, swap recipes, and debate upcoming litigation strategies?

One thing is certain: This conversation—between a party seeking unprecedented Supreme Court emergency relief from a sentencing hearing in state court that he himself delayed and one of nine jurists deciding that matter—will in no way trigger any meaningful consequences for either man. We can already declare that the Supreme Court’s recent feint at creating a credible ethics regime is officially over. Tuesday’s phone call was the unholy marriage of blanket presidential immunity to blanket judicial impunity. It tells you all you need to know about what is coming next.