SCOTUS and Presidential Immunity
A republic if you can keep it, indeed.
Let me start with a caveat or two. Things like yesterday’s oral arguments in the Trump immunity case are the kind of thing that creates a bit of tension between the immediacy of blogging and my academic temperament. I have initial thoughts, but they are incomplete because I haven’t had time to fully read and reflect. Moreover, we all know that tea leaf reading based on oral arguments is just that. Still, it does seem to be the case that the results of yesterday will be a significant delay in Trump’s election interference trial.
So, these are some initial thoughts (and certainly not all of those thoughts with more likely to come).
Of the things that I find profoundly concerning is that there is clearly a belief among many members of the Supreme Court that the president ought to be protected in some significant way from prosecution as a general matter.
For example, note this question from Justice Alito (source):
“If an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?” he asked.
Ok, let me start with what should be an obvious rejoinder: the reason that Trump is being prosecuted in the very case that spawned these oral arguments is that he is accused, quite credibly in my view, of trying to destabilize our country as a democracy. It would seem to me that if he knew his actions might lead to prosecution, he (or some future hypothetical president) might have been more cautious in his behavior.
But even if the threat of prosecution might not deter such a person, may I note for the Justice that expanding/affirming some notion of immunity from prosecution would likely empower such a person? I mean, this is stunning to me (to put it mildly). Indeed, this is insane on a variety of levels. The utter disregard for the events up to and including January 6th is, in my mind, beyond the pale. As is the notion that an authoritarian-minded president might be forestalled from anti-democratic action because they know they are basically immune form prosecution.
This is topsy-turvy.
Trump’s attorney was making some similar arguments, which I would think should cause the Justices to balk, but instead many seemed to generally agree (or, at least four of them did).
John Sauer, Trump’s attorney, said charging a president might make that president more hesitant about making consequential decisions (same source as above).
“If a president can be charged, put on trial and imprisoned for his most consequential decisions as soon as he leaves office, that looming threat will distort the president’s decision-making, precisely when bold and fearless action is most needed,” he said.
To me, and keep in mind I study democracy, the idea that a president might consider the legal implications of his decisions is an unalloyed good. The notion, however, that a president should be emboldened to be “fearless” in the face of the rule of law is a very frightening prospect. I would prefer a president who did fear the legal implications of their actions.
I have seen some references to separation of powers in the coverage, mostly linked to the argument that the potential prosecution of the president would weaken it. I would counter that the entire system of separation of powers is supposed to include the notion of checks and balances which are power-limiting aspects of the system. Absolute separation of powers can lead to governmental dysfunction if not outright tyranny–especially if the executive is unfettered by the concern of punishment for illegal actions.
Along this lines, there is this (source):
Justice Brett Kavanaugh appeared sympathetic to the former president’s argument that criminal statutes do not apply to the president unless they say so specifically. He told Dreeben that it’s a “serious constitutional question whether a criminal statute can apply to the president’s criminal acts.”
If you believe, as I do, that we should have a system of laws, not of men, this should be a chilling theory. Moreover, it one has any concept of limited government, then this should concern one greatly.
Justice Samuel Alito, however, was skeptical, noting that – in contrast with immunity – the issue of special protection would have to be litigated at a trial and “may involve great expense,” as well as the possibility that the former president (who is currently both running for office and on trial in a Manhattan courtroom) “might not be able to engage in other activities.”
My admittedly glib response to this is: if you can’t do the time, don’t do the the crime. My more measured response is that there is a reason why this has not been an issue until Trump. And that reason is not petty politics making its way into the legal process. It is because Trump has engaged in a series of behaviors that have raised legitimate legal issues. Whether he is ultimately found guilty of any of these charges, the charges themselves are not outside the realm of reasonable. I know that some partisans would disagree with this, but maybe if Trump had behaved like most presidents/human beings, he wouldn’t be facing these expenses in time and money.
And more broadly, both Gorsuch and Kavanaugh worried aloud about the wider impact of the court’s decision. Telling Dreeben that the justices were “writing a rule for the ages,” and that he was “not concerned about this case as much as future ones,” Gorsuch, who, like Kavanaugh, was nominated to the court by Trump, expressed concern about the use of the law to target political opponents. Emphasizing that virtually all first-term presidents will be concerned about being reelected, he pressed Dreeben on whether his theory would include consideration of a president’s motives.
[…]
But Kavanaugh was not reassured. Echoing Gorsuch, he told Dreeben that this case has “huge implications for the” presidency, and that he was “very concerned about the future.” Kavanaugh – who served as a deputy to Ken Starr during his investigation of then-President Bill Clinton – cited the Supreme Court’s 1988 decision in Morrison v. Olson, upholding the constitutionality of the independent counsel statute, as “one of the Court’s biggest mistakes” because it “hampered” presidential administrations. When former presidents are subjected to prosecution, Kavanaugh said, “history tells us it’s not going to stop.”
What I find utterly galling/flooring/depressing (among other reactions) that that the Court is currently dealing with a real situation. We did not have a peaceful transfer of executive power for the first time in US history and instead of dealing with that reality, several of the Justices want to act like they are dealing with lofty hypotheticals set in the far distant future.
We already have an overpowered executive. It seems likely that once SCOTUS rules, the executive will be even more powered and also potentially emboldened to behave in increasingly authoritarian ways.
Indeed,
Jackson had a different view. Without the threat of criminal liability, she told Sauer, “future presidents will be emboldened to commit crimes.”
This strikes me as manifestly the case.
Speaking of Sauer, we also have things like the following:
While I understand that a lawyer’s job is to argue vehemently for their client, even sometimes to the point of exaggeration, we cannot ignore the implications of these arguments before the highest court in the land.
The lack of seriousness on display this week is nauseating.
I would also recommend Jamelle Bouie: This Whole King Trump Thing Is Getting Awfully Literal.
It is difficult to overstate the radical contempt for Republican government embodied in the former president’s notion that he can break the law without consequence or sanction on the grounds that he must have that right as chief executive. As Trump sees it, the president is sovereign, not the people. In his grotesque vision of executive power, the president is a king, unbound by law, chained only to the limits of his will.
This is nonsense. In a detailed amicus brief submitted in support of the government in Trump v. United States, 15 leading historians of the early American republic show the extent to which the framers and ratifiers of the Constitution rejected the idea of presidential immunity for crimes committed in office.
Rather than quote a huge chunk of the article, I would recommend reading it via the gift link.
I will note this example, however:
James Iredell, one of the first justices of the Supreme Court, told the North Carolina ratifying convention that if the president “commits any misdemeanor in office, he is impeachable, removable from office, and incapacitated to hold any office of honor, trust or profit.” And if he commits any crime, “he is punishable by the laws of his country, and in capital cases may be deprived of his life.”
Yes, you read that correctly. In his argument for the Constitution, one of the earliest appointees to the Supreme Court specified that in a capital case, the president could be tried, convicted and put to death.
Of the many things I am learning, one of them is that originalism is an utter farce.
And without getting into the whole “republic v. democracy” discussion, I would note that the core notion of republicanism is the lack of a monarch/aristocracy. It is not hyperbole to state that making the president immune from legal consequences moves us away from the republican ideal towards a more monarchical chief executive.
What was especially galling to me with the oral arguments yesterday was the utter disconnect with the recent line of decisions this court has been writing regarding the “major questions doctrine”. So executive rulemaking via a considered, well-defined process is impermissible because it’s usurping legislative power, but if the president just straight up ignores congress and does whatever they want, that’s not only okay, but actively protected?
Much of the difference between liberals and conservatives comes down to basic psychology. There must be hundreds of books on the subject. George Lakoff expresses it well as a strict father model v a nurturant parent model. Conservatives deep in their black hearts want a strict father to protect them, a unitary executive, a monarch in all but name.
Put differently, it comes down to what you fear most, a weak executive or an autocrat. I learned long ago in my personal life that there’s no such thing as our asshole, assholes are in it solely for themselves. The Federalist Justices have apparently led such coddled lives they never learned this. Or, again to put it differently, a benevolent dictator would be the best form of government, but “benevolent dictator” is, in the real world, a contradiction in terms.
Alexandra Petri
@petridishes
@Stormy Dragon: That. And the “originalists” seemed mostly talking about consequentialist hypotheticals, not the law.
Frankly if the soi-disant conservatives in the USA and who speak to the soi-disant conservatives on the Supreme court are not chilled by this then … well if one desires to copy Argentina and have a Very American Peronism…
An immune President unbounded, well I suppose Melanie can be your slavic Evita.
As in real estate, this matter comes down to three points:
1) No one is above the law
2) No one is above the law
3) No one is above the law
Justice Alito explained: “If an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?”
You can tell these people and their clerks are eyeball-deep in redpilled online stuff. Few actual books by real writers exhibit this sort of reasoning. It’s just online reddit/redpilled guys angry about feminism and mistaking antisocial detachment for objectivity and believing free speech amounts to wondering if slavery is better for black people or something.
Alito is going to defend Trump and Jan 6ers all the way up to the moment they put the noose around his neck.
I find myself wondering if they can really be that shallow and venal and partisan, or whether they are taking the opportunity to play to the MAGAs and Trump, knowing that this will be blown across the internet.
So, there’s a possibility that in this particular instance, they have to rule against Trump, and they know it, but how do they make that look SUUUUPER RELUCTANT and shake their heads and sigh. And say things like “I’m making a rule for the ages”.
I guess that’s hope speaking.
@gVOR10: @Jay L Gischer: I think that The Federalist justices are ultimately saying “Yes, the law is different for us than for you.” The question that remains is who constitutes “us.”
@just nutha: Agree. One, Wilhoit. Two, I’ve long felt that liberals and conservatives alike see us versus them. But liberals draw
“us” much more broadly.
@just nutha: All animals are equal but some are more equal than others.
It is so…surreal that some of these justices do not appear to grok the notion that gee, maybe this is why having a leader with character matters.
If all presidential actions are immune–including actions that would very clearly be illegal for everyone else–then our democracy has failed, fully and completely.
The Presidency is just an office.
50 years ago, the class of political observers and practitioners were worried about the “imperial presidency,” with power so disproportionate, relative to other organs or branches of government, that it would become effectively unconstrained. It wasn’t just Nixon and Watergate that inspired this fear. Vietnam — and specifically, the Tonkin Gulf Resolution, granting LBJ the ability to wage an undeclared war — that also was on their minds. There were also other forces behind the imperial presidency, such as the huge federal bureaucracy. These were all evolutions of presidential power that were better or worse responses to the exigencies of the time, such as having someone able to make quick decisions in a nuclear crisis, without consulting the other branches of government. The post-Nixon consensus was, let’s not have an imperial presidency, given the bad places (Watergate and Vietnam) it took us as a country.
50 years later, the arguments being made before the Supreme Court, and by some of the justices, if we can make inferences from their questions, assume the imperial presidency is necessary, and also a given. The President occupies such a unique job that he can’t possibly do it without being above the law. Creating Jesuitical distinctions about crimes committed as official acts, and crimes committed in a personal capacity, are just distractions from the core thesis: the Presidency can’t function without the person in that office being free to be a criminal sometimes. We should be grateful that his or her paternal mantle protects all us wretched subjects, in spite of, or perhaps because, of that person’s criminality. Even though there is no immunity clause in the Constitution. Even though every other President was able to discharge his duties without criminal immunity. Even though other office-holders in the federal and state governments didn’t need a get out of jail free card. Even though people celebrated Washington’s decision not to run again, to ensure that we would not have an imperial presidency.
To say that this is wrong, contrary to the stated principles behind the Constitution, and even the basic reasons for having a United States in the first place (to escape the arbitrary and criminal powers of an imperial authority), is as obvious as stating that the Earth orbits the Sun. Of course, there are people who will dispute that fact, but thankfully we don’t elevate them to positions of high office, and the power to decide how the rest of us will live.
@gVOR10: Every human being who ever existed has “Us” versus “Them” pretty deeply embedded. There are a bunch of hormonal/psychology experiments that demonstrate this. The hormone that demonstrates this is oxytocin (as opposed to Oxycontin, which is a [highly addictive] pharmaceutical medication).
For a reference: https://www.amazon.com/Behave-Biology-Humans-Best-Worst/dp/1594205078
I think the wiggle room that we have is indeed there appears to be some freedom in how we define “us” and “them”. Also, we can put limits on what we are willing to do for the sake of our affiliation. But there is no escaping this.
In a more humorous vein, I would note that I have observed that for people around the world there is always “those guys”.
If you’re a Swede its the Norwegians. If you’re from Northern California its the SoCals. My boss one observed this to a Berlin-oriented German he know and she nodded immediately and said, “Bavarians”.
I wish Joe Biden would give a speech in which he would thank the Court for their current thinking and announce that the second they rule that presidents are completely immune from prosecution, he will order that Donald Trump be assassinated and that the justices be rounded up and imprisoned at Guantanamo Bay… and that if they have a problem with that, they should maybe add that to their thinking.
Far too many of the current Supremes seem to think they are a lofty debating society where the goal is to score points against your opponent and be declared the winner. They don’t REALLY grok the real-world consequences. It’s just a thought exercise. The very definition of ivory-tower intellectuals that used to much more strongly plague the left (many decades ago) has become a bastion of right-wing nonsense glibly discussing hypotheticals while the country flails.
If there is still a United States in 100 years (and I am more and more pessimistic on that score, for many reasons) this lot and many of their decisions will be viewed with the same contempt as Dred Scott or Plessy vs Ferguson.
@wr: I mean, this is really the point to make, isn’t it?
That if it was okay for Trump to ignore the results of the election and try and hang on, then yep, Biden can do that AND MORE, because literally nothing matters.
Honestly, I cannot even begin to fathom WTF is going on in Alito’s or Kavanaugh’s minds with these questions of theirs. JFC.
@gVOR10:
We shouldn’t be surprised the Court’s conservatives icreasingly concede — albeit accidentally — that their innocent “calling balls and strikes” originalist/textualist ideology was imaginary.
It’s a Court that lacks democratic legitimacy, formed by chicanery and shenanigans. Last year, they relegated gays to second-class citizenship using a case from an imaginary business with imaginary gay customers. This year, they heard a case to dismantle abortion pill access based on doctors facing imaginary injury.
This Court’s most notorious decision was predicated on Alito’s tall tale about pre-viability abortion, which was long accepted in common law. Yet Alito claimed abortion is not rooted in our “history and traditions.” Guess Sammy Boy imagined a different history than is extant.
So it checks that this rouge, far right Court might erode checks-and-balances though ignoring present Trump-related facts, focusing instead on imaginary scenarios about partisan retribution.
@Jen:
It’s sad and heartbreaking when you see people who are subjugated.
When you see people eagerly lining up for the dictator’s leash, that’s just plain disgusting.
@Just Another Ex-Republican: “Far too many of the current Supremes seem to think they are a lofty debating society where the goal is to score points against your opponent and be declared the winner. They don’t REALLY grok the real-world consequences. It’s just a thought exercise.”
I actually wish that were true. But my suspicion is that they play at being a lofty debating society while they are actually creating laws that favor themselves and their donors while harming most of the public. After all, if it’s just thought exercise, it’s not their fault that the people who ride them around on luxury yachts happen to get richer and more powerful with every decision.
@wr: Agreed. I do not see the behavior of the conservatives on the Court to be highfalutin debate based on abstract intellectualism. Rather, it comes across to me as most obfuscation and sophistry in search of reaching a desired outcome.
I also don’t think that most, if any of them, are as smart as they think they are or that we in the public like to think is the case.
@DK:
[Reads twice]They’re more than a little pink, they are pretty red. [Reads again] Oh, rogue.
@Modulo Myself:
“Well, Justice Alito, let me frame it this way: If a woman was elected President and had an abortion, could she be arrested in Arizona?”
It’s a good thing I have never been interested in becoming a lawyer, I guess.
My hope is that the Biden administration is war-gaming an action that is outrageous and partisan, but short of murder/kidnapping of the justices. Perhaps something like having the National Guard block all access to Republican office holder’s congressional offices, or have the GA withhold paychecks for every Republican member of congress and of any Justice who votes to give blanket immunity to the President. Hell, cancel their government healthcare just cuz’.
Force the SCOTUS to deal with the ramifications of such a ridiculous ruling, should they make that ruling.
And the Biden administration might as well send a messenger over to John Roberts telling them to expect it.
@Kingdaddy:
Seems to me that we are at that juncture as we speak (and SCOTUS justices and Trump lawyers bloviate about “hypotheticals”), but fortunately, that’s just my cracker-esque take, and I may well be wrong (I hope).
@Jay L Gischer:
One of my senior citizen students in Korea suggested that Japanese was another foreign language that was important to learn in a class discussion one day. Her reason?
@Jay L Gischer:
I’m afraid it’s an example of the “justice always prevails in the end in America” mentality that has gone from wishful thinking to a refusal to confront reality. Trump judges aren’t worried about reappointment or re-election; they have no incentive to play to the MAGA crowd in public while being principled jurists in their decisions.
The issue before the court could and should have been resolved by a very straightforward ruling that public officials, including but not limited to presidents, have immunity from prosecution for acts that fall within the scope of their official duties, no immunity for other acts, and disputes about the application of that principle have to be decided on a case-by-case basis. But no, the Trump judges decided this was a massively complicated question that required Big Legal Brains to make a “rule for the ages” (good grief), probably requiring at least the rest of the year to decide.
Perhaps they really want to open the way for a president to become a dictator but it’s also possible they are simply craven cowards who hope they can avoid making a decision until Trump gets elected and Attorney General Habba terminates all the proceedings against him, whereupon they can proclaim that the whole thing has become moot and dismiss it.
@Jen: I think that they are probably thinking (to riff off a eucharistic prayer):
But some people say I have too low of an opinion of my peers (and those above the common crackers).
I wonder whether Alito realizes that he has now publicly stated that he believes criminal prosecution to be arbitrary and capricious, and wholly under the control of politicians. Otherwise, the only risk of “criminal prosecution by a bitter political opponent” would be if (a) there were sufficient grounds for indictment, and (b) your bitter opponent happened to be the DA.
Ironically, giving Presidents immunity would create the very power to persecute political foes that Alito seems to be worried about. What a cretin.
@Kathy: Sure, but Alito et al. are imagining that they are the holders of the ultimate leash, in another version of the face-eating leopards irony.
@Steven L. Taylor: And it’s pretty much always true that if you look around and realize that you are the smartest person in the room, you need to find a different room. Or even if you look around and come to believe that you are.
Scalia’s genius was that he could craft cogent and plausible legal arguments in favor of whatever outcome-driven position he held. There are no Scalias on the Suborned Court. Alito is to Scalia as Benny Hill is to Stephen Fry.
@Ken_L:
So if Trump believes that keeping Biden from getting the necessary votes in the House of Representatives is necessary for the preservation of MAGA, then he’s “protecting and defending the Constitution,” right?
No, I don’t agree either but am making the point to show that it is arguable. “…[D]isputes about the application… ” looks like a full employment for Constitutional Lawyers Act-type of proposition in our current times. Cue up Bush v Gore 2.0. 2.1, 2.2, etc.?
ETA: I occurred to me that my opening sentence could have read “So if Trump/Biden believes that keeping Biden/Trump from getting the necessary votes in the House of Representatives is necessary for the preservation of MAGA/our society and government, then he’s “protecting and defending the Constitution,” right?” except that (thankfully) several of our commentariat have assured us that Democrats would never take the law into their own hands in such a manner.
@Just nutha ignint cracker:
In the latter case, perhaps even more so.
You might have hoped that these dimwits would have read enough English history to understand why, when Charles I and James II proposed the immunity of the Crown to the limits of law, the ordinarily rather peaceable English started opening the weapons locker.
@Just nutha ignint cracker:
What a president believes is beside the point. Whether they were actually protecting and defending the constitution is a question of fact and law to be decided by a court on the basis of the evidence and arguments in the particular case. It’s no different in principle to many contested matters that end up before criminal courts, for example whether or not a police homicide was justifiable.
This whole immunity nonsense strikes me as a bad Bizarro world joke of some sort. I mean, when confronted with it, a jurist should reply “are you fuc**ing kidding me?”
@Ken_L:
Given the president, or Lardass, has access to a great deal of information from the DOJ and FBI, who in turn can obtain evidence or data from state electoral authorities, or compel such data with a court order, and that no evidence of fraud could be found, the notion that Lardass could reasonably believe he was protecting and defending the constitution is absurd on its face.
Seriously, his best bet for avoiding prison after nakedly staging a badly conceived and horribly executed coup, would be to plead something like insanity or diminished capacity.
BTW, as to Scalito’s objections, I want elected officials to have the pure fear of God in them about whether questionable actions in office, be they “official acts” or not, are criminal actions that could land them in prison. Quis custodiet ipsos custodes? (Who watches the watchers): the law does.
Always was.
I believe that most here are missing the point.
All of the SCOTUS Six’ words are pure BS, a smokescreen to cover for the fact that they support the insurrection and every other crime which Trump has committed.
@DrDaveT: “Ironically, giving Presidents immunity would create the very power to persecute political foes that Alito seems to be worried about. What a cretin”
Alito and the rest are lying, pure and simple.
When somebody look at a prohibited action, and start BS like ‘but does it specifically say that John Sampson can’t do it?’, they support John Sampson in breaking the law.