The Supreme Court and Presidential Immunity

The United States Supreme Court issued a major ruling in Trump v. United States, a 6-3 decision with the Majority Opinion authored by Chief Justice John Roberts. The issue on appeal was the nature and scope of Presidential Immunity from criminal prosecutions for acts committed while serving as President. It was a matter of first impression because NO President prior to Donald Trump had been indicted for alleged criminal acts. Justice Amy Coney Barrett wrote a concurring opinion and Justices Sonia Sotomayor and Ketanji Brown Jackson generated lengthy and stinging dissents. I have read each opinion. I love the study of constitutional law, received the American Jurisprudence Award in that subject while in law school and religiously track the opinions of the Court. I am very concerned about the potential impact of the decision, although not totally surprised by the result. Therefore, I respectfully (ah- maybe not so respectfully) DISSENT.

A short factual background for context. Democrat Joseph Biden decisively defeated Republican Donald Trump in the 2020 Presidential election. As the Republican Senate Minority Leader has commented on multiple occasions, “IT WAS NOT A PARTICULARLY CLOSE ELECTION”. Biden won the popular count by 7 million votes. The Electoral College margin was 303 to 232. All of the major networks and news organisations, including Fox, declared Biden the winner. Despite overwhelming evidence, Trump immediately labeled the results as “fraudulent” and “rigged” and embarked on a 90 day political and legal jihad to reverse the results and have himself declared the winner. His charges were unprecedented. No loser of a presidential election had ever made such an aggressive assault on our electoral system or our democracy. It was also a disgrace- a promulgation of A BIG LIE and an outrageous abuse of Presidential authority. The allegations of widespread fraud were patently false. The Trump campaign and oddball activist groups filed over 70 lawsuits in state and federal courts and ALL were summarily dismissed. They were laughed out of court. Trump, in violation of any norms of decency, then initiated a new phase of multi pronged attacks on the election. He sought to coerce his own Justice Department to publicly support Trump’s claims of election fraud. They demurred because their own investigation concluded the opposite. He then contacted state election officials in Georgia, Arizona and Michigan and urged them to “reverse” the results in their states by “finding” additional Trump voted or “disqualifying” legally cast Biden votes. The state election officials, all Republicans, refused to embark on such a mission because they had faith in their systems and Trump’s assertions of misfeasance were not based on reality. They were fantasies. Trump then approved a bizarre scheme for dissident Republicans in those states to prepare “alternative” sets of electors- individuals who would certify to Congress that Trump had won the state, not Biden. Literally, Kafkaesque stuff! Trump’s final play was to do a full court press on Vice President Pence to ignore his statutory and constitutional duties and unilaterally reject the certified results at the January 6 Certification Hearing. Trump then put the cherry on this disgusting cake by telling his supporters to march to the Capitol and “take their country back”- which they followed to the letter by commencing a televised insurrection on January 6, 2021.

As I write this summary and before we do a legal analysis, I struggle to come to terms with the idea that the man who engineered this assault on our institutions may be returned to the White House by American voters. DEPRESSING! After the insurrection, Trump was impeached for a second time and 60 Senators voted to convict. Unfortunately, you need 67. Several Senators who voted to acquit, including Senator McConnell asserted that conviction was unnecessary because Trump was out of office and subject to criminal prosecution in the courts for his behaviour.

There are so many legal proceedings involving Trump that it is hard to keep them straight. The Supreme Court opinion stems from a four count federal indictment of Trump. Under the direction of Special Counsel Jack Smith, Trump was charged with criminal conspiracy to defraud the United States. Specifically, Trump worked to interfere with the federal government’s constitutional responsibility re the counting of votes in Federal Presidential elections. Trump obstructed the January 6, 2021 certification of Joe Biden’s victory and worked to deny voters their right to have their votes counted properly. Essentially, the course of action described above was “criminal.” Trump’s legal team filed a Motion to Dismiss all counts and asserted that Trump had absolute immunity from criminal prosecution for acts he committed while serving as President. The prosecution argued there is no such thing as Presidential immunity for criminal acts. The District Court summarily denied Trump’s Motion to Dismiss and ruled there is no doctrine of Presidential immunity in the Constitution or under any existing legal precedent. The Court of Appeals unanimously agreed and reaffirmed the fundamental proposition that a President is not above the law. Their opinion explicitly states “It is paradoxical to say that a President’s duty to take care that the laws be faithfully executed allows for him to violate the criminal laws. “ They further state there is “no immunity for criminal violations that would neutralise the most fundamental check on Executive power- the recognition and implementation of properly certified election results.” Strong stuff!

Needless to say, the Supreme Court took an entirely different approach. They held a President has ABSOLUTE immunity for official acts within his core and exclusive Presidential authority. Specifically, acts such as pardons, acts within purview of Commander in Chief duties, leadership of the Executive Branch, acts directed at execution of the laws, veto powers, foreign policy and the appointment power, including judicial appointments, enforcing immigration laws. This is enormously broad, particularly since Presidential powers have radically expanded in the last 90 years. Furthermore, a President has presumptive immunity for all other “official” acts within the outer perimeter of his Presidential responsibilities. This presumption of immunity could be overcome if prosecutors established the charges would not threaten the power and function of the Executive Branch. Finally, there is no immunity for purely “private” acts. The majority concludes this tiered immunity system means the President is not above the law. Call me a skeptic!

Applying this newly created standard to the Trump indictment, the Court ruled definitively that Trump is immune from the charges based on his communications with Justice Department officials. They are employees of the Executive Branch and a President has a right to discuss policy and legal issues with them. The Court also suggests that Trump’s interactions with Vice President Pence re election certification are presumptively immune because interaction between a President and his Vice President is normal. Finally, the Court remanded to case to the District Court and ordered the judge to conduct a hearing on whether other actions alleged in the indictment- the interactions with state election officials and other private actors were “official” or “private” acts. At minimum this will delay the trial in this matter until after the November 5, 2024 election. It also puts enormous pressure on the District Court to structure a fair hearing. It also creates likely appeals from any ruling the District court makes on these questions. It guarantees endless legal proceedings on exotic questions not addressed previously by any court.

Where did this ruling come from? Many commentators believe it is purely political exercise designed to thwart the legal proceedings against Trump. Three of the Justices were appointed by Trump. I am tempted to engage in similar hyperbole, but default to my own instincts not to be cynical and instead do a calm assessment of the legal reasoning. Justice Roberts has always been protective of Executive power and he certainly acts in accord with that philosophy here. Simply stated, he believes the successful functioning of the Executive requires a broad framework supporting Presidential immunity. He seeks to protect Presidents from retributive political based prosecutions by his successors. He believes vulnerability to future criminal prosecutions will constrain President’s ability to make decisions in the best interests of the nation. A President should make decisions fearlessly and fairly without fear of future criminal and partisan prosecution. He basically says you need to make Presidents generally immune or we will degenerate into a banana republic.

There is hypothetical risk that the United States could degenerate into a dark cycle of politically motivated prosecutions. In fact, if you listen to Trump, the concern is legitimate because Trump has publicly proclaimed that he will use the Justice Department to gain retribution against his political enemies, including President Biden. Republicans regularly assert Biden should be criminally charged for his failure to execute our immigration laws. The irony is this decision may actually protect Biden against future lunacy from another Trump Presidency.

While the scenario above is intellectually interesting, it does not save the decision in my view. I conclude the decision was legally incorrect and the reasoning behind it unwise. First, the conservative majority completely abandoned its openly stated commitment to “originalism” as its favoured theory of constitutional interpretation. Basically, the original text drives the analysis and judges should avoid inserting their own policy preferences. They did the opposite here. Read the Constitution- there is nothing expressed or implied supporting the notion that the Framers wanted to create a governing structure where the President is immune. It is not there! The concept of immunity was known at the time and the drafters of the Constitution did not include it in Article 2. This made total sense because the new nation had just fought a war of independence based on a rejection of absolute monarchy. There was no interest in making the new American President legally unassailable. In fact, the Constitution explicitly contemplates criminal prosecutions for acts that lead to Presidential impeachment and conviction. The impeachment clause states “the party convicted shall nevertheless be liable and subject to indictment, trial, judgement and punishment according to law." No ambiguity there! Roberts is granting Presidents a degree of autonomy that is beyond the Founder’s original intent. They made it up. They created new law.

Second, basically everyone understood there was no Presidential immunity for criminal acts prior to this decision. A majority of legal scholars thought the Immunity argument was frivolous. President Ford gave President Nixon an absolute and unconditional pardon for his conduct as President. He concluded a pardon was necessary because “Richard Nixon HAS become liable to potential indictments and trial for offenses against the United States” and he was granting a pardon to spare Nixon from a criminal trial. Curiously, the Roberts immunity doctrine here would probably have made Nixon immune from any charges related to the Watergate affair because he was directing Executive Branch employees at all phases of the coverup. Dean, Haldeman, Mitchell and Erlichman all worked for him. Tricky Dicky was ahead of his time when he said, “If the President does it, it is not illegal.” The Nixon era Supreme Court had already ruled that a President could not claim privilege in the face of a criminal subpoena. Most recently, Senator McConnell, on the floor of the Senate stated, “We have criminal justice system in this country and we have civil litigation. Former Presidents are not immune from being held accountable by either one.”

Third, the majority declaration that immunity is necessary to protect Presidential energy and discretion is totally unsupported by the historical record. I have read every Presidential memoir out there. NOT ONE has ever cited any instance where their policies, their appointments, their military decisions, their foreign policy were negative influenced by a fear they would be criminally prosecuted by a successor administration. Never happened! No risk! Of course, Trump is unique because he engaged in colorably criminal behaviour on a regular basis and thankfully that has not been the case with prior Presidents. Bad facts here and bad cases can make bad law. The Court seems to be anticipating the future will be different with Presidents routinely prosecuting their predecessors. Hope they are wrong.

The dissents are persuasive and compelling. Roberts is worried about limits on Presidential discretion. Sotomayor and Jackson say the actual threat is that the existence of immunity will enable Presidents to put their own interests above the nation’s. They preserve the baseline principle that a President is subject to the law and persuasively show there are many safeguards in the system preventing frivolous and willy-nilly criminal prosecutions of ex Presidents.

Let’s not jump off a bridge just yet. Let’s watch the hearings on the nature of Trump’s post election behavior- was it “official” or “private.” Counts may survive and the Supreme Court may ultimately uphold such a ruling from below. We shall see. Ultimately, the immunity debate will hopefully become moot in real life because we will wisely elect presidents who don’t engage in criminal behaviour while in office. Good citizens should adopt that as a minimum standard when they enter the voting booth.