Supreme Court: Trump Is Indeed Above the Law

 

Supreme Court: Trump Is Indeed Above the Law 

Why “Partial Immunity” Literally Becomes “Total Immunity”

“The indictment’s remaining allegations involve Trump’s interactions with persons outside the Executive Branch: state officials, private parties, and the general public. In particular, the indictment alleges that Trump and his co-conspirators attempted to convince certain state officials that election fraud had tainted the popular vote count in their States, and thus electoral votes for Trump’s opponent needed to be changed to electoral votes for Trump. After Trump failed to convince those officials to alter their state processes, he and his coconspirators allegedly developed and effectuated a plan to submit fraudulent slates of Presidential electors to obstruct the certification proceeding. On Trump’s view, the alleged conduct qualifies as official because it was undertaken to ensure the integrity and proper administration of the federal election. As the Government sees it, however, Trump can point to no plausible source of authority enabling the President to take such actions. Determining whose characterization may be correct, and with respect to which conduct, requires a fact-specific analysis of the indictment’s extensive and interrelated allegations. The Court accordingly remands to the District Court to determine in the first instance whether Trump’s conduct in this area qualifies as official or unofficial.” From the Chief Justice John Roberts majority opinion, Trump vs US, July 1st.

If you just read the headlines, the ultimate consolidated opinion of the US Supreme Court’s 119-page July 1st opinion – Trump vs The United States – reads that the President of the United States is subject to the same laws as the rest of us but has immunity for his official acts as president. So, it appears as if the Court merely remanded the case to the lower courts to sort out which of Donald Trump’s actions were official and which were not. But the devil is in the details, and those details make prosecuting a president for criminal acts (of any magnitude) exceptionally difficult and, in many cases nearly impossible.

What is fatal or near fatal to most such prosecutions is what evidence is excluded from consideration. For example, trial courts may not look at the defendant-president’s motivation manifest during his term, thus excluding any evidence that might reveal a toxic, self-aggrandizing, biased or even criminal intent, a very important element often essential to convict. Expressed privately or publicly! If for example, during his term, Trump were to declare publicly his desire to be a “dictator for a day” or that he would inflict “retribution” on his political opponents, such statements cannot be used against him. 

Likewise, if any of Trump’s statements, actions or discussions were generated during his term as a part of his core responsibility – specifically including talking privately to the Vice President or members of the Departments of Defense or Justice – even if such conversations were directed at usurping the results of an election by false premises, they cannot be used as evidence of anything. “The immunity the Court has recognized therefore extends to the ‘outer perimeter’ of the President’s official responsibilities, covering actions so long as they are ‘not manifestly or palpably beyond [his] authority.’ Blassingame v. Trump… The Executive Branch has ‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute, including with respect to allegations of election crime.” Majority Opinion from Chief Justice John Roberts. Moreover, Roberts states, “It is the Government’s burden to rebut the presumption of immunity.” To a layperson, this doesn’t sound like much, but when you add the excluded evidence as noted above, that shift in proof creates another insulator against possible conviction… even if a major crime were committed by the President. 

The lengthy opinion gives with one hand and takes away with the other. I’ve excerpted notes from Roberts’ majority opinion above, but I think that excerpts from those justices writing separate opinions are equally valuable in assessing the impact of this case:

Justice Thomas (concurring but challenging the legality of the Special Counsel): 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 by Law,” as the Constitution requires.  

Justice Barrett (dissenting, in part, but otherwise concurring) arguing that in a bribery prosecution, for instance, excluding “any mention” of the official act associated with the bribe “would hamstring the prosecution.” But of course the prosecutor may point to the public record to show the fact that the President performed the official act. And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act.  

Justice Sotomayor (dissent joined by Justices Kagan and Jackson): 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, … 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.

Justice Jackson (dissent): To the extent that the majority’s new accountability paradigm allows Presidents to evade punishment for their criminal acts while in office, the seeds of absolute power for Presidents have been planted. And, without a doubt, absolute power corrupts absolutely.  

In the end, this decision may indeed wake up that segment of the electorate who may have believed that this presidential campaign is merely about the individual domestic and foreign issues we face – cost of living, immigration, abortion, the mental capacity of the candidates, etc. – but now clearly understand that this is a vote between sanctioning an imperial presidency or one where we support a democratic/constitution system where personal choice and freedom within a legal system where no one is above the law. 

Roberts lambasts the dissent saying: But unlike anyone else, the President is a branch of government, and the Constitution vests in him sweeping powers and duties. Accounting for that reality—and ensuring that the President may exercise those powers forcefully, as the Framers anticipated he would—does not place him above the law; it preserves the basic structure of the Constitution from which that law derives. The dissents’ positions in the end boil down to ignoring the Constitution’s separation of powers and the Court’s precedent and instead fear mongering on the basis of extreme hypotheticals about a future where the President “feels empowered to violate federal criminal law.” Unfortunately, Mr Chief Justice, you have elevated the power of the executive branch and diminished the constitutional powers of the judiciary, a common attribute of nations transitioning from democracy to autocracy.

 I’m Peter Dekom, and on November 5th, Americans can vote for a King or a President.