MUSINGS ON TRUMP v. US
(Posted July 12, 2024) The opinion presses are still this week at Ninth and Franklin – statistically unsurprising, considering that there are only three argued but undecided cases left – so let’s wade across the Potomac to consider one of SCOTUS’s several watershed decisions at the end of OT’23. There are plenty of those to choose from, but in my mind the biggest of those was the last to arrive: Trump v. United States.
The issues here are important enough that I’ve let my thoughts on the case simmer for a week and a half. Especially with SCOTUS decisions, where I don’t know the caselaw as well, I prefer not to offer hasty opinions. I recognize that you didn’t exactly go hungry for analysis, as the decision has been covered widely in other media.
In this appeal, the Court established wide-reaching presidential immunity for current and past presidents. This is the appeal where Trump’s lawyer responded to a question in oral argument by agreeing that if a president ordered SEAL Team Six to assassinate a political rival, that would be an official act and would be protected by immunity.
In last week’s opinion, the Supreme Court gave Trump, in the words of the dissenting justices, all he asked for and more. The decision creates three tiers of immunity analysis for former presidents. For what the Court calls “core” presidential responsibilities under the Constitution – things like appointing ambassadors, granting pardons, and removing Executive Branch officials – neither Congress nor the courts can restrain the president.
The second tier comprises those presidential duties in which the executive branch shares some responsibility with the other branches. For these acts, the president will now enjoy presumptive immunity that will bar any prosecutorial actions unless they pose “no dangers of intrusion on the authority and functions of the Executive Branch.”
The final tier covers a president’s unofficial acts, for which there’s no immunity. While the decision doesn’t define such acts, they logically include matters wholly outside the president’s responsibilities of office, such as playing golf or buying a gift for a family member.
In the “all that he asked and more” column, the ruling adds what Louisianans call a lagniappe – a little something extra. The Court holds that even where a former president may be tried for an unofficial act or where the prosecution overcomes the presumption, no evidence may be adduced of any acts that are privileged, and no inquiry is permissible into the president’s motives or intentions. It also, though no one asked it to do so, waves a wand over a longstanding Justice Department legal position that sitting presidents may not be prosecuted, and turns it into a de facto official holding of the Supreme Court. (See this essay for greatly expanded treatment of that premise.)
The Court justifies the first two tiers by different routes. For the first, it’s separation of powers. If the Constitution grants unfettered power to the Executive Branch, then the Legislative Branch may not pass laws to forbid or regulate the use of such power, and presumptively the Judicial Branch would be without authority to try such a case.
For the second, the majority seeks to protect the ability of the president to act, and react, boldly, without the nagging worry of potential future criminal prosecution. The Court fears an Executive Branch that “cannibalizes itself” if each president would be at liberty to send the law after his or her predecessor of a different party.
The dissenting justices see this as a massive and unwarranted grant of power to the president, immunizing him for what would be plainly criminal behavior as long as he’s performing official acts. Justice Sotomayor’s primary dissent (Justice Jackson also files one) includes this stark accusation:
The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.
The chief justice’s majority opinion accuses the dissents of “strik[ing] a tone of chilling doom that is wholly disproportionate to what the Court actually does today …” The majority includes repeated assurances that the ruling doesn’t place presidents above the law.
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The chief’s assurances fail to convince me, for one primary reason: I’m not a moron. Yes, the president is now almost completely above the law. The criminal law might reach him for plainly private conduct like cheating on his taxes or embezzling money from his church; but for the overwhelming majority of presidential acts, no matter how egregious, the chief executive is now unconstrained to follow the law that he swears an oath to enforce. The chief justice’s assurance is written in water.
Here’s an Exhibit A for the prosecution in my thesis. Remember the ability to overcome presumptive immunity, to reach “official acts” (undefined in the opinion) for criminal prosecution? The threshold to overcome the presumption is that it must pose “no dangers of intrusion on” the president’s authorities. Note that it doesn’t say “massive dangers,” or even “unreasonable dangers.” It says “no dangers.” If the president can demonstrate any intrusion, however slight, then the law can’t touch him. Let’s face it: No American president will face any prosecution for any official act, as long as this case retains vitality.
The same justices who thus dramatically altered the balance of political power in our nation once professed the opposite conclusion. In their confirmation hearings, the chief and Justices Alito, Gorsuch, and Kavanaugh assured senators that they warmly embraced the premise that no man is above the law. Justice Barrett takes them to task for this switcheroo in her partial concurrence/dissent, writing that the majority’s bold shift “makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.”
Nor does this decision fit well within the decisional frameworks that the Court’s majority has professed. It isn’t textualist; the Constitution says nothing about presidential immunity, though it does grant immunities to other officers in other respects. It isn’t originalist; the Founders would be appalled by this, as the dissents point out in a string of quotations. And it plainly ignores any pretense of judicial restraint, deciding questions that weren’t truly before the Court, just so the majority can generate a broad rule.
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For those of us who see clearly the danger that this decision presents, how can this error be corrected? It won’t be easy and it won’t happen in the short run; maybe not in my lifetime. A constitutional amendment could wipe out broad immunity, perhaps substituting a narrower protection to dissuade the cannibals that the chief fears. When the Court’s personnel changes, a different set of justices could overrule this opinion. That won’t happen quickly because seats change hands so seldom; in addition, the Court would need a procedural vehicle, a suitable appeal, in which to take up the question. Either way, if a solution will come, it’s many years away.
In the meantime, we now live in a different America than we did at the end of June. Our ancestors, including three of mine, fought a war to rid ourselves of a ruler who wasn’t answerable to the criminal law; now the Supreme Court has given us another one. We can all too easily imagine what immunity like this would inspire in the mind of a future president who disdains the rule of law that we lawyers have sworn an oath to support.
There’s one more effect that I see from this decision, and it directly affects those of us who live and work in the appellate milieu. For a few years now, the Supreme Court of the United States has been hemorrhaging institutional legitimacy. Troubling news accounts of gifts to justices, and ensuing refusals to recuse, have subjected the Court to biting criticism. The Court’s hastily released code of conduct proved wholly toothless, a reflection that the Court, too, is above the laws that apply to other judges.
Then there’s public support. The popularity vel non of opinions isn’t supposed to matter in a justice’s mind in deciding cases. That’s as it should be; Brown v. Board of Education and Obergefell v. Hodges were highly unpopular in major swaths of society when they arrived. So, probably, was Miranda v. Arizona; the tough-on-crime set back then probably rankled at the idea of respecting arrestees’ rights.
But in the past couple of years, the Court has handed down several rulings that are deeply unpopular with sizable majorities of the populace. Dobbs v. Jackson Women’s Health is one such; a clear majority of Americans supported the right of a pregnant woman to get an abortion on her doctor’s advice. By striking down a right that had existed for half a century, the Court announced a deeply unpopular decision that has generated electoral backlash, even in ruby-red states. Consider also Garland v. Cargill, where the Court ignored widespread public support for a ban on bump stocks, essentially telling Americans that they just have to live with what are effectively machine guns in private hands, wandering among us.
Now we have another such resentment-triggering opinion. I’ve read multiple reports that something like 75% of Americans believe that the president should not be immune for committing criminal acts. The Supreme Court gave the president that immunity anyway, effectively legitimizing Richard Nixon’s infamous claim that “If the president does it, that means it is not illegal.”
One unpopular ruling isn’t a problem for the Supreme Court, but a long string of those will cause wide swaths of the American populace to lose confidence on the Court as a neutral arbiter. We’re long past the idea of a Supreme Court that merely “calls balls and strikes” – that was never true, even when then-Judge Roberts professed it in his confirmation hearing. (If you doubt me, consider the purely judicial origin of the doctrine of qualified immunity, which has, by judicial fiat, gutted the §1983 remedy that Congress enacted.) Now we’ve reached the point that a growing number of Americans see the Supreme Court as merely another political branch of government. The next step is growing civil disobedience of unpopular decisions. The next step after that is unpleasant to contemplate.
But the justices don’t care. The majority now have enough votes that they no longer need to care. This brings to mind the quip of a Robe in the last century who told a law clerk that the most important skill on the Supreme Court is the ability to count to five.
