Our Nation's Future is on Shakier Ground
My thoughts on the SCOTUS's Presidential Immunity Case
On July 1, 2024, the U.S. Supreme Court released its official opinion in the Trump v. United States case. I highly recommend you read the entire opinion.
Let me dispense, from the start, with the typical “I’m not a lawyer” intro when talking about law. It’s true, I‘m not. But I don’t believe you need to be. If you’re of average intelligence and education (if you’re not, stop now), paid attention in civics class (if you had this class…and paid attention), can read the court’s decision carefully and thoughtfully, google some terms, and ponder how human beings relate to power and the sinfulness that many men (or women) are capable of given the chance (and the legal immunity) to abuse power in the pursuit of personal gain, then you can grasp how this decision seems like a very bad decision.
In summary the hight court 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.
Fairly straight forward, reasonable, you might be thinking. I did. But as usual the devil is in the details. Read the entire 119 page opinion.
The court’s opinion (decision), in the near term, was a partial victory for Donald Trump. Why? Because it delayed the prosecution of felony charges against Trump related to the January 6, 2021, insurrection at the U.S. Capitol. Before this case can proceed, the lower courts must define what qualifies as an “official act” and what doesn’t. That’s likely to take months. This case has no chance of going to trial before the November election.
First, this is unfair and unjust for the American public and our democracy. The American public should know, before the November election, if Donald Trump will be found guilty of plotting an insurrection against the federal government—because the evidence in this case strongly suggests that’s exactly what he is guilty of doing.
Partially I blame the Attorney General, Merrick Garland, for justice delayed or possibly never being served in this case. The investigation and prosecution of Donald Trump should have been completed within 24 months after Trump left office. Garland, in my view, played politics by letting political considerations (not getting ahead of the Jan 6th congressional committee’s investigation) delay his decision to authorize Jack Smith, the Special Counsel, to move forward quickly with a criminal investigation and prosecution. Had Garland acted properly, there would have been more time to work through the inevitable legal battles that Garland knew would be part of this case.
Many legal experts (and the court’s dissenting justices) see the supreme court’s decision as a potential threat to the survival of our democracy. I can’t disagree with them.
The biggest casualty of this court’s decision is, I’m guessing, the sobriety of many Americans. We must now imagine Trump, an unscrupulous man with no impulse control, being reelected to the presidency and thinking he has a broad presumptive criminal immunity for whatever he thinks is an “official act.” And of course anything that helps the Donald and his family, or hurts his perceived enemies, will be considered an official act.
The line between an official or unofficial act, as the court notes, is often blurred and hard to discern. Men like Donald Trump, given the opportunity, will use that ambiguity to get away with corruption and other nefarious acts of self-interest. And if that wasn’t bad enough, the court ruled that while investigating a president’s actions the prosecution cannot inquire into the motives of the president.
Think about that. Proving motive and intent is a critical element in a successful prosecution. If a president, let’s say threatens to hold up a critical shipment of military arms to an allied nation at war, unless that allied nation’s leader “does him a favor” and publicly announces an investigation into the president’s political rival, in order to hurt his political rival’s chances in a coming election, the motive of that president becomes central to any potential criminal persecution. But now, the court has ruled, a prosecutor can’t use that evidence against any president or former president.
And what about bribery. What if a sitting president agrees to approve government action or funding for a friend or foreign nation in exchange for some type of payment or favorable outcome that benefits the president and his family personally? Hmmm, sound familiar? The motive, of course, is personal enrichment, not official duties. But that motive couldn’t be introduced as evidence in this blatant act of bribery at the highest level of government.
And it gets worse. In this decision the court added a privileged communication rule. After Trump’s acting Attorney General told then president Trump that an exhaustive DOJ investigation didn’t reveal any outcome determinative fraud in the 2020 election, Trump ignored this and said: “Just say the election was corrupt and leave the rest to me and the Republican congressmen.”
The acting AG at the time, refused. He wouldn’t lie. So Trump tried to replace him with a new acting AG (a yes man) that appeared willing to lie and use the full force and power of the DOJ in the service of that lie. The supreme court has now ruled that none of the conversations between Trump and the acting AG, or any DOJ official, can be placed into evidence. Think about that. Trump was criminally conspiring to use the full force of the DOJ to assist him in overturning a lawful election—a coup attempt!— and this conversation cannot be used as evidence. That’s absurd.
There is no immunity clause in the Constitution for presidents. The court’s conservative majority has created and defined this immunity with this decision. The Framers were well aware of the concept of immunity. The Constitution does provide limited immunity, for example, to Congress in the Speech and Debate clause. Various state governors at the time the Constitution was written had various levels of limited legal immunity. But noticeably the Framers of the U.S. Constitution did not include any legal immunity for the president.
The simple truth is the Framers didn’t agree on a lot of things, and certainly not the meaning of all the provisions in the Constitution. What they did collectively agree on was the need for a government that would not abuse its power or become a tyranny. That was the type of government the Framers had just fought a revolution to break free from and establish a constitutional republic based on popular will.
Among the three branches of the U.S. government, the executive branch is basically a one man (or woman) show. The president is the commander and chief of the United States military and has a vast array of internal law enforcement resources at his or her disposal to enforce executive decisions….official acts. The other two branches (congressional and judiciary) can legislate and litigate, but they’re largely powerless to actively enforce the powers granted to them by the Constitution. They must count on the executive branch to do that. So the president holds by far the greatest power in this trio.
I believe the Framers explicitly omitted any type of presidential immunity. Our Republic has gone 248 years without presidents having a defined legal immunity rule. The Framers designed the Constitution to guard against the abuse of power by people just like Trump. A rogue president, with a vast array of resources at his disposal, could be a grave threat to our democracy.
A president should always have to operate believing that legal accountability is part of the job and the risk of leadership. No man is above the law. Lincoln operated under extreme conditions, without any defined immunity, during the Civil War. So did Wilson during WWI and FDR during WWII. And so did various other presidents during many other challenging and contentious times in our nation’s history. None of them were prosecuted after leaving office. None.
Trump was prosecuted after leaving office because he committed multiple crimes while in office and after he left. The simple truth is this nation has never had such an unscrupulous man serve as president. And just like any other citizen, Trump should face criminal prosecution for the crimes he committed.
Our constitutional republic was the solution to the problem of human nature. The Framers were collectively concerned with the abuse of power by ambitious individuals or factions. I think the obvious reason the Framers largely excluded any immunity clauses from the Constitution is simple: Those in power would have to always operate under the general assumption that they could be held accountable for any unlawful acts committed while in office. We have a vast system of courts, with multiple layers of appellate courts, that act as a check on the abuse of a rogue prosecutor.
This supreme court appears to have rushed to the aid of the Office of the President as an institution, while ignoring the public’s (“We the people”) much larger constitutional interest in holding individuals who abuse the powers of the presidency (as with any Office) legally accountable. This decision has put our nation’s future on shakier ground.