July 1st, 2024 will probably be recorded as one of the saddest days in the history of American democracy; the day the conservative majority of the Supreme Court of the United States acted as an extension of the defense team of a former president who had incited an insurrection among other egregious acts, each one of which would warrant an impeachment and removal under normal conditions. Initially, the extreme delays introduced by the SCOTUS before finally handing down the 6-3 ruling on “Trump v. United States” seemed to be the main tool that the SCOTUS was using to ensure effective immunity for the mob boss, without having to explicitly grant him absolute immunity. It turns out, however, that the damage to democracy by this ruling is far greater than simply granting immunity by delaying the decision. They practically granted the convicted felon absolute immunity against prosecution for any action he took while he was in the office. Reading the majority opinion, I am actually surprised they did not extend the immunity to actions he took before and after his term in the office as well. After all, the same arguments they used to justify the so called “presumptive” immunity can be easily extended to many other actions outside the office and before and after the presidency as well. Below, I will explain this and why the seemingly partial immunity in the ruling is practically an absolute immunity.
Before looking more closely at the majority opinion as well as concurring and dissenting opinions, I should emphasize, as I have done in other posts, that I am not a lawyer, and the arguments I am presenting here are not legal arguments. I am only looking at these rulings and opinions based on common sense, and trying to explain how egregiously they defy the common sense. For more on why I feel entitled to express my opinions on these matters, please refer to the first paragraph of “Bribe, or Gratuity?“
The majority opinion starts as follows:
A federal grand jury indicted former President Donald J. Trump on four counts for conduct that occurred during his Presidency following the November 2020 election. The indictment alleged that after losing that election, Trump conspired to overturn it by spreading knowingly false claims of election fraud to obstruct the collecting, counting, and certifying of the election results. Trump moved to dismiss the indictment based on Presidential immunity, arguing that a President has absolute immunity from criminal prosecution for actions performed within the outer perimeter of his official responsibilities, and that the indictment’s allegations fell within the core of his official duties. The District Court denied Trump’s motion to dismiss, holding that former Presidents do not possess federal criminal immunity for any acts. The D. C. Circuit affirmed. Both the District Court and the D. C. Circuit declined to decide whether the indicted conduct involved official acts.
Held: Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts. Pp. 5–43
Please note the first sentence of the “Held” section above. The claim is that under our constitutional structure of separated powers, the president is entitled to absolute immunity from criminal prosecution for some actions and “presumptive” immunity for some other actions. Now, let’s think about this a little bit. Does separation of powers really mean immunity from criminal prosecution? Just do a Google search for “separation of powers” and read the first few results. This is one example I got from the Cornell Law School website:
Separation of powers is a doctrine of constitutional law under which the three branches of government (executive, legislative, and judicial) are kept separate. This is also known as the system of checks and balances, because each branch is given certain powers so as to check and balance the other branches.
Each branch has separate powers, and generally each branch is not allowed to exercise the powers of the other branches.
Please comment below and let me know if I am mistaken, but reading the above statement, my understanding is that separation of powers means that each branch is not allowed to exercise the powers of other branches. It does not mean that the judicial system cannot criminally prosecute the executive branch for any criminal official act. Or the legislative branch cannot investigate potential wrongdoings by other two branches. In fact, the definition above explicitly says that “This is also know as the system of checks and balances.” It continues to say “each branch is given certain powers so as to check and balance the other branches.” This sounds to me as the exact opposite of immunity.
Now, let’s try to explore some of the implications of the above opinion held by the majority in this case. If the president is entitled to absolute/presumptive immunity for his official acts, then what is the point of having the procedures for impeachment and removal by congress? Wouldn’t the same immunity that according to the above opinion the president enjoys, shield him from impeachment as well? After all, if separation of powers means immunity for the president, then it should be equally applicable to congressional oversight as well.
The majority opinion continues to read as
(a) This case is the first criminal prosecution in our Nation’s history of a former President for actions taken during his Presidency. Determining whether and under what circumstances such a prosecution may proceed requires careful assessment of the scope of Presidential power under the Constitution. The nature of that power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is entitled
to at least presumptive immunity. Pp. 5–15.
Let’s consider the president’s core constitutional powers. One of these powers is appointment of ambassadors. According to the above opinion, the president has absolute immunity for this act regardless of the circumstances. Now, suppose a wealthy person offers the president a billion dollars to be appointed as the ambassador of the United States in Switzerland. Obviously this is a bribery case (unless that person pays the billion dollars after being appointed, in which case it can be considered as gratuity and is not likely a crime according to the other recent ruling of the Supreme Court discussed at “Bribe, or Gratuity?“; before you complain, this is just an exaggeration to highlight the absurdity of the arguments, otherwise the other ruling, at least in its current form, does not apply to federal officials). Technically, this is one of the cases for which the congress can impeach the president (bribery is explicitly mentioned in the constitution as one of the impeachable acts). But now put that next to the above opinion from the Supreme Court. Can the congress impeach the president for a wrongdoing during this core constitutional act for which he has absolute immunity? Doesn’t this ruling of the Supreme Court go directly against the concept of checks and balances?
The opinion then grants “presumptive” immunity on other official acts of the president within the outer perimeter of his official responsibilities. So, what does this mean? My understanding is that this is similar to the notion of “presumption of innocence” that every American enjoys in any criminal trial. Meaning that it is the responsibility of the prosecutor to prove the guilt, not the responsibility of the accused to prove their innocence. The majority believes that the President should be entitled to an additional right, and only presumption of innocence, like every other American, is not sufficient for him/her. That would mean that the president should be presumed immune from prosecution for any “official” act, and that it will be the responsibility of the prosecution to prove or the judge to decide whether the immunity applies to the case at hand or not, possibly even before looking at the evidence. Or as the opinion puts it:
At a minimum, the President must therefore be immune from prosecution for an official act 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.”
It seems that the court’s majority is more concerned about preventing “intrusion on the authority of the Executive Branch” than preventing egregious criminal acts by the head of the Executive Branch. If the court really considers this case as a rare event with no similar case in the history of the republic, shouldn’t the court try to address this isolated case directly and not create broad immunity for the president when no other president neither needed nor requested such a broad level of immunity? Of course, in the more than 50-page opinion, the court tries to justify this immunity, and I recommend any interested reader to review the entire opinion for themselves. But similar to the other recent cases that I have discussed in “Bribe, or Gratuity?” and “Obstruction of an Official Proceeding? or Not?“, the arguments seem more like legal gymnastics and a reverse engineering attempt to find some basis, any basis, anything that may be considered even remotely relevant, in the legal precedence, history and tradition, etc, to justify a conclusion that they had already reached at, even before hearing the oral arguments in April.
This “presumptive” immunity is something that will eventually be decided by the Supreme Court itself on a case by case basis, because every criminal president (hopefully we won’t have any other criminal president in the future) will try to use it to their advantage as much as possible, and as, most likely, the lower courts will decide against this presumptive immunity, the case will ultimately be appealed to the Supreme Court. I have no doubt that this will happen in this very same case that was in front of the Supreme Court, if it ever gets to be tried. The district court judge will decide that some acts are not subject to this presumptive immunity, then it will be appealed, and the appellate court will confirm the district court’s opinion. The case will ultimately be appealed to the Supreme Court, and then it will be the conservative super majority who will decide (possibly after consulting with the spouses of some of the Justices) on whether those particular acts are subject to the presumptive immunity or not. You can imagine how the Supreme Court will rule on the case at that time, of course, only if the case involves this particular former president. So, you see, the “presumptive” immunity is really just another name for “absolute” immunity, only with some delay.
The majority opinion carries on to provide the following argument in Section III-C regarding criminal prosecution of a president’s unofficial acts:
If official conduct for which the President is immune may be scrutinized to help secure his conviction, even on charges that purport to be based only on his unofficial conduct, the “intended effect” of immunity would be defeated. Fitzgerald, 457 U. S., at 756. The President’s immune conduct would be subject to examination by a jury on the basis of generally applicable criminal laws. Use of evidence about such conduct, even when an indictment alleges only unofficial conduct, would thereby heighten the prospect that the President’s official decisionmaking will be distorted. See Clinton, 520 U. S., at 694, n. 19.
Meaning that, even for criminal prosecution of the president’s unofficial acts, any evidence arising from his/her official acts cannot be used during the prosecution of the unofficial act. The reasoning, as you see above, is that the court’s majority fears this intrusion into the president’s official acts may defeat the “intended effect” of the “presumptive” immunity that they themselves have invented, and may “highten the prospect that the President’s official decisionmaking will be distorted.” The absurdity of this argument is so obvious that even the conservative Justice Barrett was not able to agree with it, and expressed this disagreement in her concurring opinion. She correctly and rightfully considers the case of bribery, in which the criminality of the unofficial act of receiving the bribe may not be effectively established without considering the official act that was taken in return to receiving the bribe. As she puts it:
To make sense of charges alleging a quid pro quo, the jury must be allowed to hear about both the quid and the quo, even if the quo, standing alone, could not be a basis for the President’s criminal liability.
I encourage the interested reader to review the scathing dissent by the liberal minority of the court, and only bring the opening paragraph of it here as a preview:
Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.
Relying on little more than its own misguided wisdom about the need for “bold and unhesitating action” by the President, ante, at 3, 13, the Court gives former President Trump all the immunity he asked for and more. Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent.
Actually, it would be a remiss if I didn’t include Justice Sotomayor’s last sentence in her dissent, so here it is:
With fear for our democracy, I dissent.
I wish the conservative majority of the court had just as much fear for our democracy as they have for heightened prospect of a president’s official decisionmaking being distorted. I wonder how they reconcile this overreaching novel immunity that they claim the president cannot possibly function without it, with the criminal liabilities of any other government official under the executive branch. For example, if the president orders assassination of his political rival claiming that person to be a corrupt person and that the assassination is part of the president’s official acts to protect the nation from the corruption of his/her political rival, under the presumptive immunity provided by the majority opinion, he/she will be very likely immune from criminal prosecution. However, the person who carries out the president’s order may be criminally prosecuted for murder, since the broad immunity of this ruling is only invented to protect the president, and really only one specific former president, for that matter.
If you are still not convinced about the possibility of some political bias, or rather blind loyalty to a particular former president, in this ruling, I encourage you to take a look at Justice Thomas’s concurring opinion, which starts as
Few things would threaten our constitutional order more than criminally prosecuting a former President for his official acts. Fortunately, the Constitution does not permit us to chart such a dangerous course. As the Court forcefully explains, the Framers “deemed an energetic executive essential to . . . the security of liberty,” and our “system of separated powers” accordingly insulates the President from prosecution for his official acts. Ante, at 10, 42 (internal quotation marks omitted). To conclude otherwise would hamstring the vigorous Executive that our Constitution envisions. “While the separation of powers may prevent us from righting every wrong, it does so in order to ensure that we do not lose liberty.” Morrison v. Olson, 487 U. S. 654, 710–711 (1988) (Scalia, J., dissenting).
I write separately to highlight another way in which this prosecution may violate our constitutional structure. In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States. But, I am not sure that any office for the Special Counsel has been “established b Law,” as the Constitution requires. Art. II, §2, cl. 2. By requiring that Congress create federal offices “by Law,” the Constitution imposes an important check against the President—he cannot create offices at his pleasure. If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President.
No former President has faced criminal prosecution for his acts while in office in the more than 200 years since the founding of our country. And, that is so despite numerous past Presidents taking actions that many would argue constitute crimes. If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people. The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding.
Please note the very first sentence, “Few things would threaten our constitutional order more than criminally prosecuting a former President for his official acts.” The Justice does not seem to have any concern about a president actually committing criminal acts, in his/her official capacity or otherwise. He does not seem to believe that such criminal acts might “threaten our constitutional order.” The threat, as he perceives it, happens only if the (former) president is criminally prosecuted for such criminal acts after leaving office. One wonders if the Justice’s priority is really protecting our constitutional order or protecting that particular former president from criminal prosecution.
But the more interesting part of the opinion starts from the second paragraph, where the Justice questions the legality of the appointment of the Special Council. I wonder whether the Justice had raised the same question about the several appointments of the Independent Council Ken Starr while he was a private citizen in the late 1990s. One may even wonder if the Justice is actually addressing the case that was in front of the court regarding the Washington DC criminal indictment by Special Council Jack Smith, or he is providing ammunition for Federal Judge Cannon presiding over the classified documents case in Florida. In the case that was in front of the court for which this opinion is handed down, the defendant did not raise any question regarding the legality of the appointment of the Special Council. So, why is Justice Thomas discussing something that the court was not asked to provide an opinion or ruling about? As far as I understand, the Supreme Court usually avoids expressing opinions on matters that have not been presented to the court and requested the court to opine on. The fact that Justice Thomas goes out of his way to express concerns about the appointment of the Special Council, is either an indication of the Justice’s confusion between the two cases, one of which is in front of the court, but the other one is not, or is an indication of his reckless intention to protect the former president from any prosecution, at any cost.
I finish this post by bringing this point to the readers’ attention that, in the above concurring opinion, Justice Thomas celebrates the fact that “the Constitution imposes an important check against the President—he cannot create offices at his pleasure.” Interestingly, the Justice does not seem to have any problem with the President committing criminal acts, such as inciting an insurrection against the Constitution, or creating slates of fake electors to overturn the results of a legitimate election in which he had lost, or attempting to prevent peaceful transfer of power, or encouraging his mob to storm the Capitol, attack his own vice president, and possibly hang him, as long as he claims them to be part of his official duties. But appointing an independent Special Council, as has been done many many times over the last couple of centuries, and who is not an employee of the DoJ and hence can be more fair and impartial in prosecuting a political rival of the sitting president? Oh, that is absolutely intolerable!