A five-alarm fire for democracy
On Monday, six members of the Supreme Court granted Donald Trump — and every future president — broad criminal immunity. The court found that, as president, Trump was free to use his "official" powers to commit crimes. Considering the President of the United States is the most powerful position in the world, this is a breathtaking pronouncement.
Writing in dissent, Justice Sotomayor details the implications:
When [the President of the United States] uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.
The Supreme Court invented this new kind of presidential immunity 235 years after the Constitution was ratified. And it lacks any grounding in the Constitution's text. Instead, Chief Justice Roberts, writing for the majority, cites the need for the president to take "bold and unhesitating action" without "undue caution."
Justice Sotomayor explains that the Constitution contains provisions granting various forms of criminal immunity to federal officials. But the President of the United States was not included:
The Framers clearly knew how to provide for immunity from prosecution. They did provide a narrow immunity for legislators in the Speech or Debate Clause. See Art. I, §6, cl. 1 (“Senators and Representatives . . . shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place”). They did not extend the same or similar immunity to Presidents.
Indeed, the Constitution specifically contemplates the criminal prosecution of a former President. The Constitution states that even after a President is impeached, convicted, and removed from office, the former President "shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Trump's own lawyers, during his second impeachment trial, argued that Senators should not convict him because if there was evidence supporting wrongdoing, Trump could be criminally prosecuted for the events of January 6 after leaving office.
In Federalist No. 69, Alexander Hamilton wrote that the President would be "liable to prosecution and punishment in the ordinary course of law." This, Hamilton wrote is the key distinction between the "King of England," who was "sacred and invulnerable," and the "President of the United States."
Giving Trump everything he wants
The majority attempts to frame its decision as a compromise, because it states that former Presidents do not have immunity for unofficial acts. But that was the position of Trump's own lawyers. So it is hardly a concession.
It also creates a very narrow definition of "unofficial" acts. The President is acting in an official capacity as long as the President's actions are "not manifestly or palpably beyond [his] authority." Further, when making that evaluation as to whether an action is official or unofficial "courts may not inquire into the President’s motives." That's why, if the President accepts $10,000,000 to issue a pardon, the President cannot be prosecuted criminally for issuing the pardon because the President's "motive" for the pardon, an official act, is off limits.
The majority then states that when the President's actions fall within the office's "conclusive and preclusive" authority — powers that stem directly from the Constitution or legislation — the President has absolute immunity. The majority uses this standard to declare "Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials," which is part of the federal indictment against Trump related to January 6. Notably, the majority does not state what, if any, of Trump's actions that form the basis of the criminal charges are unofficial acts.
The heart of the majority decision is that, for all other official acts, the President has "at least presumptive immunity." The majority finds the President is immune unless "the Government can show that applying a criminal prohibition to that act would pose no 'dangers of intrusion on the authority and functions of the Executive Branch.'" As Justice Sotomayor notes in the dissent, however, "it is hard to imagine a criminal prosecution for a President’s official acts that would pose no dangers of intrusion on Presidential authority in the majority’s eyes." The majority decision, in fact, explains at length why criminally prosecuting Trump for pressuring former Vice President Pence to overturn the legitimate results of the election and install Trump for a second term may be an "intrusion on Presidential authority":
[T]he President may frequently rely on the Vice President in his capacity as President of the Senate to advance the President’s agenda in Congress. When the Senate is closely divided, for instance, the Vice President’s tiebreaking vote may be crucial for confirming the President’s nominees and passing laws that align with the President’s policies. Applying a criminal prohibition to the President’s conversations discussing such matters with the Vice President—even though they concern his role as President of the Senate—may well hinder the President’s ability to perform his constitutional functions.
As if that were not sufficient, the majority also reserves the right to scrap the idea of a "presumption" of immunity and just declare that the President is immune from criminal prosecution for all official acts at some future date.
Justice Sotomayor sums up the impact of the majority decision: "Today's court…has replaced a presumption of equality before the law with a presumption that the President is above the law for all of his official acts."
What happens now to Trump's case — and the nation
The majority's decision does not end the criminal case against Trump related to his actions on and around January 6, 2021. But the case is on life support. The Supreme Court remanded the case back to the district court to apply the decision and determine whether any of the charges against Trump survive.
If the district court finds that some of the criminal charges against Trump can proceed, Trump can appeal and eventually find his way back to the Supreme Court. At a minimum, this will delay any potential trial far beyond the 2024 election.
If Trump wins the election, he can direct the Justice Department to drop the case. And even if Trump loses the election, is a majority of the Supreme Court prepared to say that Trump should be tried for any of his conduct related to January 6, 2021? At this point, it seems doubtful.
But the implications for Trump's criminal prosecution pale in comparison to the longterm impact on the nation. "The Court has now declared for the first time in history that the most powerful official in the United States can… become a law unto himself," Justice Ketanji Jackson wrote in a separate dissent. "Presidents alone are now free to commit crimes when they are on the job, while all other Americans must follow the law in all aspects of their lives, whether personal or professional."
Thousands of words will be written about just how bad this, and frankly most, decisions of this Supreme Court is. But what I want to know is why for Trump? Why have so many people who were once thought of as honorable (well except maybe Thomas, Alito and Kavanaugh) prostituted themselves for a garbage person like Trump? I get the desire for an authoritarian ruler by the billionaires and the religious fanatics, but Trump? Surely there were other men (and it would never be a woman) who could fill the role without all of the baggage that Trump brings with him.
This is an opportunity for Biden to clean house in the Congress of all the insurrectionist supporters and get the government back to the business of running the country. It is a a glass half empty that can be turned into a glass half full. Biden may be subject to law suits but his oath of office and duty to his country is to protect against all enemies foreign and domestic...never saw a more obvious display than that of certain congressional members that are gumming up the machinery. They seem to be the root of all our problems having been corrupted by big money interests.