The Supreme Court ended a grueling term with a final sledgehammer blow on Monday. One ruling on Donald Trump’s immunity claim of criminal charges forecloses any possibility that will try to January 6 before the election, necessarily guts the prosecution and reshapes the Constitution to place the president singularly beyond the reach of the criminal law.
The opinion was even more broad given the president’s immunity than commentators had anticipated after oral arguments suggested the conservative majority was headed in that direction. And while it theoretically allows prosecutors to list some of Trump’s long list of misdeeds and treachery in the weeks after the 2020 election, it creates a series of roadblocks and assumptions that make it anyone’s guess that Trump will face responsibility under the indictment.
The court’s main holding is that the principle of constitutional separation of powers prohibits criminal prosecution of former presidents for “official acts” committed during their term of office, while allowing “unofficial” acts. The 6-3 decision broke along familiar lines, with the conservative majority continuing the project of remaking laws and the structure of the federal government.
How do you draw the line between official and unofficial actions? The court provides some criteria that, although somewhat vague, clearly protect actions that will strike almost everyone as corrupt and lawless – at least many of those that Trump is doing after the 2020 election.
For starters, the court granted absolute immunity to “core constitutional powers”. This includes at least the presidential powers enumerated in Article 2 of the Constitution, such as being the commander-in-chief of the armed forces, issuing pardons and appointing judges. The president acting in the area cannot do so.
Importantly, the court emphasized that this immunity does not consider motive. So the president who, for example, issues a pardon in return for bribing or firing an executive officer from the animus race is only protected from the law as a person who takes such action for appropriate and conventional reasons.
It can authorize some of the president’s most vicious and problematic actions. There is no rational reason, for example, that does not include what has been taken as a devastating hypothetical offered by Judge Florence Y. Pan of the US Court of Appeals for the DC circuit: the president used Navy SEALs to kill a political rival. If the reason for the president to use the commander-in-chief outside the boundaries of the investigation, such actions can not be distinguished from conventional military missions.
Motives are the soul of criminal law. This is what differentiates behavior that is accepted by society from behavior that is put in prison. The declaration that it has no role in determining the president’s criminal responsibility is tantamount to making him a king.
But the court’s decision went further. It immunizes not only core constitutional functions but also any actions on the outer perimeter of executive authority – the same standard that has been applied to civil lawsuits over presidential actions.
And although there has been some debate on this matter, the court seems to have gone further by applying the presumption of immunity to actions outside that perimeter unless the government demonstrates that the prosecution will “not be in danger of interference with the authority and functions of the Executive Branch.”
How this will play out on January 6, the prosecution to some extent for US District Judge Tanya Chutkan to try to figure out, with Trump challenging every move he makes along the way. The Court emphasized that distinguishing “official acts of the President from unofficial acts can be difficult” and may require a “specific” inquiry into the context (excluding the president’s motives).
But the court dropped some strong hints about the aspect of the prosecution being prevented. It basically says that Trump’s alleged efforts to fight false allegations of election fraud in Georgia with the help of Justice Department officials are off limits. That’s because the allegations impinge on the president’s official powers to investigate and prosecute crimes.
The opinion also strongly suggests that the alleged plan for strong Vice President Mike Pence to violate the Constitution may be protected as it relates to the interactions of the two top executive officers.
And the court seems to want to give a pass to Trump’s incendiary rhetoric near the Capitol on January 6 on the basis that communicating with the public is part of what the president does.
The only aspect of the indictment that the court has dealt with is the alleged extensive effort to prepare a slate of fraudulent voters. There, however, the court issued a detailed inquiry that put the burden on special counsel Jack Smith’s team to counter Trump’s argument that the action was official “because it was done to ensure the integrity and proper administration of federal elections.”
Even if Trump loses the election and the case is allowed to extend this year, the legal battle will take more time. Every aspect of the application of the court’s opinion to the case can be appealed to the DC circuit and the Supreme Court.
And where did all this come from, the basic reordering of our tripartite government system and the principle – which the courts continue to pay lip service to – that the president is not above the law?
The answer is nothing more than the court’s view that the president should be able to act boldly and energetically without worrying about subsequent criminal charges. The judges do not, strictly speaking, interpret the provisions of the Constitution, but apply their ideas of what makes an effective president. The conservative majority actually incorporated the principles of political science into the constitutional structure and used them to drive a truck through the principle of equality before the law.
The majority rejects the liberal dissenters’ view that the decision makes the president above the law as “ignoring the separation of powers of the Constitution and Court precedent and instead fearmongering based on extreme hypotheses about a future where the president ‘feels empowered. to violate federal criminal law.’ “
But there is nothing scary, unrealistic or extreme about these worries. He was concerned with the facts before the judge. They chose to ignore it, ensuring that justice for the most serious attack on the Constitution in our history will be delayed and largely denied.
Harry Litman is the host of the “Talking Feds” podcast. with “Saying San Diego” speaker series. @harrylitman
