The reason I sound so excited is because, as the name suggests, Trump vs. the United States It’s as bad as it gets. The Supreme Court may have had legitimate concerns about the impact of its decision not on Trump, but on future presidents who might be discouraged from carrying out their constitutional duties by the possibility of criminal prosecution and the resulting “diminished presidency.” It is true that “we cannot afford to fixate solely or primarily on the present emergency.”
But the decision, written by Chief Justice John G. Roberts, went further than necessary to shield Trump from prosecution — not just before the election (which the Court’s inaction all but guaranteed), but in perpetuity if President Biden is reelected. The Court could have carved out an oasis of protection for a reasonable president to take reasonable executive action. It chose not to.
Instead, as the liberal dissenting justices put it, the decision “replaced the presumption of equality under the law with a presumption that the president is above the law in all his official acts,” creating a “lawless zone” that protects the president from liability for sending SEAL Team Six to assassinate a rival, orchestrating a military coup to stay in power, or accepting bribes in exchange for pardons.
“Let’s allow the president to break the law, to use the perks of his office for his own personal gain, and to abuse his public power,” Justice Sonia Sotomayor wrote for herself, Justices Elena Kagan and Ketanji Brown Jackson. “For if the president knew that he might one day be held accountable for breaking the law, he might not be as bold and fearless as we would like to be. That is the message of the majority today.”
The majority accused the dissenters of striking “a chillingly pessimistic tone totally out of proportion to the Court’s current practice” and of “fear-mongering based on extreme hypotheticals.” They declared that the president is “not above the law.”
And that really put him there.
Evaluate: When Trump’s lawyers first floated the outlandish idea that the president has absolute immunity from criminal prosecution for criminal conduct, it seemed less like a serious constitutional argument and more like a shrewd attempt to delay Trump’s trial on election interference charges until after November.
Because every previous court that has considered this issue, and every legal opinion from the Department of Justice, has assumed that the president is subject to criminal prosecution for official acts. As the court recognized, Alexander Hamilton wrote in Federalist No. 69 that the president “may be prosecuted and punished under the ordinary framework of law.” Richard M. Nixon accepted Gerald Ford’s pardon for that very reason. Trump’s own lawyers argued during his second impeachment trial that he was subject to criminal prosecution and should not be convicted on that ground.
To be clear, before Monday’s ruling, none of the presidents believed they would be immune to criminal prosecution, and they somehow managed to take many of the bold and brave actions.
The case on which Trump’s lawyers based their “shoot for the moon” argument was a 1982 Supreme Court decision. Nixon v. Fitzgerald. In that case, a Pentagon whistleblower sued alleging that the former president was fired in retaliation for testifying to Congress about cost overruns.
The Court ruled 5-4 that the president has absolute immunity from civil actions for damages arising from acts of official duty, and took a broad view of official acts, saying the protection applies to any conduct “within the outer fringes” of presidential liability.
But the court emphasized the difference between potential harassment in civil cases, noting that “civil actions for damages are of less public interest than criminal prosecutions.”
On Monday, the majority Fitzgerald This ruling transplants that logic into an entirely different criminal context. “The danger is as great, if not greater, than the reasons that led us to grant the President absolute immunity from civil liability: that the President will hesitate to take the ‘bold and unflinching action’ required of an independent executive branch,” Roberts warned.
The majority broadly defined presidential immunity, an approach that was doubly problematic both in the broad theory it presented and in precisely how it applied its newly crafted immunity clause to President Trump’s actions.
First of all, don’t be fooled by the majority’s self-righteous declaration that the president can be prosecuted for his personal acts. No one, not even Mr. Trump’s lawyers, has argued that. So, thank you, but no thanks.
The Court provided two types of immunity, both of which were unjust.
First, the court said the president has absolute immunity from prosecution for acts that are within his “core” constitutional powers, such as issuing pardons, appointing ambassadors and vetoing legislation.
In this regard, as the dissent pointed out, the majority’s view of core powers “stretches the concept of core powers beyond any discernible scope.” The core powers, the dissent argued, are so broad that they include the President’s duty to see that the law is faithfully executed, “effectively insulating all manner of non-core conduct from criminal prosecution.”
As an example, the dissent cited the court’s argument that Trump’s discussions with Justice Department officials fell within the scope of absolute immunity. “Under this view of core privilege, even fabricating evidence and demanding that the Department of Justice use it in a criminal case could be covered by immunity,” Justice Sotomayor wrote.
Second, the Court noted that the President enjoys “presumptive” immunity for other official acts beyond these core powers. Here again, the majority found a way to interpret the category broadly and make the presumption as unshakeable as possible. The majority’s definition of “official acts” includes anything that “does not clearly or unambiguously exceed” the President’s powers. Moreover, the Court noted that it cannot distinguish between official and non-official acts by looking at the President’s motives.
As the dissenters pointed out, “Under this rule, any use of public power, even for the most corrupt purposes shown by objective evidence of the most corrupt motives and intent, is treated as public and is subject to immunity.”
But wait, there’s more. Even if prosecutors pursue unofficial acts, they cannot use evidence of official acts as part of their proof that a former president committed a crime. This part was too harsh for Justice Amy Coney Barrett, who did not join that part of the majority.
Sotomayor kindly explained the consequences of this overreach: “Imagine a president expressing in an official speech his intention to prevent a political opponent from passing a bill he opposes by any means necessary (official act), then hiring a private hit man to kill that opponent (unofficial act),” she wrote. “Under majority rule, a murder indictment would not include any allegation that the president publicly acknowledged that he supported that bill with premeditated intent.” [charge] “Murderous.”
Equally, or perhaps more troubling, was how the majority applied its ruling to the facts of the Trump case: They took extraordinary steps to protect Trump.
Did he pressure Vice President Mike Pence not to certify the election results? “Whenever the President and Vice President discuss official business, they are engaged in official business,” the majority said. Thus, “Mr. Trump is at least presumed to be immune from prosecution for such conduct,” but it is up to the special counsel to prove otherwise.
Did Trump try to get an ally to submit a fake electoral roll? The former president’s lawyers acknowledged that was a private act during oral argument, but then retracted. The majority was not so sure. “The required analysis is rather fact-specific and requires evaluating numerous alleged communications with various state officials and private individuals.”
Astonishingly, the Supreme Court congratulated itself on the speed with which it disposed of the case “in less than five months” and, believe it or not, criticized the lower courts for moving so quickly: “Despite the unprecedented nature of this case and the fact that it raises extremely serious constitutional questions, the lower courts acted remarkably expeditiously,” Justice Roberts wrote.
And as if that wasn’t enough, Justice Clarence Thomas last week gave a good rap to U.S. District Judge Eileen M. Cannon of Florida, who heard arguments on whether the appointment of Special Counsel Jack Smith was illegal. Although the issue never came up in the pending case, except for Justice Thomas’ questioning it during oral argument, the justices’ concurring opinion devoted nine pages to shoring up their argument that Smith’s appointment violated the Constitution.
“If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized by the American people,” Thomas wrote. “Accordingly, the lower courts should answer these important questions about the appointment of a special counsel before allowing the case to proceed.” Hint, hint. The comments of a man whose wife is involved with the Stop the Steal movement should have meant he was ineligible to hear the case.
Smith’s office will be tasked with assessing the blow the court’s decision has dealt prosecutors and determining what relief is available, like a homeowner after a tornado hits.
Americans are now worrying about whether President Trump will be held accountable and, most frighteningly, what the verdict means for future presidents, including Trump himself.
“Now that the question has arisen as to when or whether former presidents may be held criminally liable for crimes committed while in office, the majority is encouraging future presidents to commit crimes while in office unless they ‘acted clearly or manifestly beyond the bounds of their office.'” Jackson wrote in a separate dissent. [their] If they exercised their “authority,” they would be considered immune from prosecution and punishment.”
Sotomayor was similarly apocalyptic. “Fearing for our democracy, I dissent,” she concluded her dissent. Neither she nor Jackson used the customary phrase “respectfully,” and for good reason.
God knows what Trump will do in his second term if he is re-elected. Save us from this disgraceful court.
