On Monday, the Supreme Court ignored the rule of law, effectively depriving the American people of vital information they should have before the November election.
The question before the justices in Trump v. United States is whether Donald Trump is immune from prosecution for the crimes that Special Counsel Jack Smith has accused him of committing while in office. The answer should have been obvious: No, a president cannot commit crimes with the intent to disrupt the peaceful transfer of power and face the consequences. In fact, to my knowledge, no court has ever held that a president may enjoy criminal immunity under any circumstances.
Instead of ruling months in advance and moving the case forward, the Supreme Court has given Trump the gift of delay after delay. By allowing nearly 10 weeks of deliberations before sending the case back to the district court, and by remanding it for a preliminary ruling that could trigger further appeals rather than an immediate trial, any realistic hope of a decision in the January 6th case before November has been dashed. American voters will enter the polls to choose between Donald Trump and President Biden without knowing whether Trump is guilty of the crimes a national grand jury has indicted him for.
The decision may seem like a reflection of a rebellious conservative majority that may change over time, but it is a symptom of deeper problems that, when the time is right, may require a constitutional amendment or even a new branch of government to solve.
Although the decision contains a lofty disclaimer that the Court is not granting total immunity to President Trump or any future presidents, the practical effect of the decision is presumptive immunity for all future presidents and total immunity by deferral for President Trump.
This prospect did not go unnoticed by Trump. He repeatedly obtained stays to avoid a trial, manipulating the legal machinery of the courts to buy himself what he needed most: time to deflect, delay and twist his story while trying to find a way to make these devastating charges go away. If he were president again, he could have the new Attorney General fire Smith and bury the entire prosecution.
Regardless of whether Trump is acquitted or found guilty at trial, exoneration is justice delayed and therefore justice denied.
So how did his relentless delay tactics throw our legal system into disarray, and why does it have such dangerous implications for the rule of law?
The Framers of the Constitution wanted to ensure that, to the greatest extent possible, no person, including the president, would be above the law. But they also designed the prosecutorial arms of the government, from the attorney general to special counsels, to be dependent on the president. Over the centuries, this has caused serious problems.
Special counsels now even lack the autonomy that independent counsels of the past enjoyed, since Justice Antonin Scalia, in his dissent in Morrison v. Olson in 1988, expressed what is now conventional wisdom in the judicial system: that the executive branch should have sole power of appointment and retention. As a result, Smith is less able than his predecessor to tackle extreme corruption at the highest levels of the executive branch.
On the other hand, the Attorney General works at the whim of the President. Perhaps that is why Merrick Garland waited almost 20 months to appoint a special counsel in this case. According to reports from The New York Times and other sources, Biden was adamantly opposed to filing charges against his predecessor when he first took office, perhaps fearing that it would backfire politically. An Attorney General unconstrained by the pressures of presidential politics might have filed charges sooner and given an answer before Election Day.
All this is generally accepted. But the case exposed a more insidious problem caused by the structural relationship between the president and the Department of Justice. Michael Dreben, a talented Department of Justice lawyer, was forced to admit at oral argument that because the Attorney General works at the pleasure of the President, the President can essentially secure the equivalent of immunity for any crime he wishes to commit. All the CEO has to do is choose an Attorney General who will publicly opine that anything he plans to do is legal, even a coup to overturn an election defeat. That counsel’s advice would give the President a defense every bit as strong as the immunity the judiciary has granted him, under well-established principles of due process.
If Trump returns to the Oval Office, he could operate with even greater immunity than he did in his first term, either by exonerating himself with the attorney general’s opinion (which would give him license to commit whatever crimes he wants) or by using the Justice Department to pursue politically motivated prosecutions.
Americans can still vote in November to reject a bill that would deal a devastating blow to the survival of a government by the people, for the people. But whatever we think about the likely outcome, we can and should begin the discussion of amending the Constitution to repair these structural flaws. Whether Trumpism collapses sooner or later, we must remember that throughout history we have made progress toward a “more perfect union” but only by envisioning a better future and striving to embody it in fundamental law. Sometimes we have amended the Constitution after intense national upheaval, such as the Civil War. But sometimes less dire events, especially those affecting the presidency, have prompted constitutional amendments.
To solve the serious and growing problem of presidential accountability, we must boldly establish an independent government agency, outside the three existing agencies, responsible for investigating and prosecuting violations of federal criminal law.
The process of amending the Constitution is long and cumbersome and could take years. It does not require presidential involvement and could only be undertaken after our constitutional republic has overcome Trumpism. But a decisive victory for the MAGA movement now or in the next few years could provide the political energy needed to make structural reform possible and persuade future supermajorities in Congress to advance amendments that repair the dangers embedded in our constitutional structure before it is too late.
There is precedent for establishing a prosecutorial agency independent of the president. In other countries and more than 40 states, the chief executive does not have the power to fire the head of the government’s prosecutorial agency. In the majority of these states, voters elect an attorney general who is independent of the governor. This is one way to elect an independent federal prosecutor to head the fourth branch of government. Another way is to leave the appointment of the federal prosecutor to the president, but ensure the official’s independence by prohibiting removal without cause.
Yes, there are risks. No political system is perfect, safe from corruption or subversion by an individual with an unquenchable thirst for control. In the system I envision, the enormous power of a federal prosecutor would come to be wielded by an individual motivated more by power than by justice. What would stop that individual from running wild? The courts? Congress? The public? The answer is all of the above.
Creating a fourth branch of power, one with less power than the President and subject to checks and balances from both the judiciary with its powers of judicial review and the legislature with its powers of fiscal control, would strengthen our institutions against the kind of abuses that have sadly been witnessed in modern times and are likely to be repeated and amplified by today’s anti-democratic decisions.
