Scott Gurvey's Public Offerings

The six members of the conservative supermajority of the Supreme Court cast their ballots for Donald Trump on the last day of the court term, then ran out of town to begin their standard three months’ long vacation.

In their wake they left a core value of American democracy in shambles. Although he absurdly denies it in so many words, John Roberts, Chief Justice of the United States, writing for the majority in Trump v. United States, declared the fundamental principal of American government that no one is above the law is no more. The President is now above the law.

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.

Trump v United States, Pp. 5–43.

You pretty much must ignore every single deliberation of the Constitutional Convention to arrive at the conclusion the majority did in this opinion. There is not a word in the Constitution that supports the granting of this immunity power to the president. The majority makes it up out of whole cloth. Forget all the talk of “originalism” and “textualism” arguing that fidelity to the original words and intent of the framers is paramount. That is merely an excuse used by conservatives to justify their opinions when convenient. They are ignored when they are inconvenient. What is the point of an oath of office now? Shall our presidents swear to “uphold the laws of the United States except in regard to myself”?

The opinion is opaque at best. The Court holds, for example, that a president can institute sham prosecutions and not be held criminally liable. It arrives at that goal through convoluted, Alice in Wonderland reasoning. The president must under the Constitution “take care that the laws be faithfully executed,” so any action he directs his Department of Justice to take, even if illegal, is part of his “take care” function. Understand? Roberts says the Constitution confers immunity but not an obligation. This makes no sense.

The majority had the temerity to announce its opinion the week Americans celebrate our declaration of independence from the British monarch. The clique of six now grants much of a monarch’s power to the president. Roberts has the gall to quote Alexander Hamilton. Hamilton was the majority author of The Federalist Papers, essays written to encourage the states to ratify the new constitution. In his opinion Roberts cherry-picks Federalist No. 70, arguing the grant of power is justified by the Framer’s call for a “vigorous” and “energetic” Executive.

Here Roberts is being disingenuous. He ignores the Court’s finding several pages later, reflecting Hamilton’s language in Federalist No. 69, that after leaving office, the president would “be liable to prosecution and punishment in the ordinary course of law.” Trump argued that he could not be prosecuted unless first impeached. The Court held otherwise.

Shortly after the ruling was announced an old clip surfaced online of Roberts saying during his 2005 Senate confirmation that the president is “fully bound” by the law and the Constitution. At the time, Roberts affirmed that not even the president is “above the law” under our system. He lied. In fact, the record shows the same line being used by most of the six. They all lied.

The Court also had specific notes on the Department of Justice, which Trump has argued has been “weaponized” against him by the Biden administration. All communications with the DOJ are to be considered “official” acts. That makes weaponization of the DOJ by a second Trump administration, as he has threatened, legal. Ironically, it also makes anything Biden has done legal. That strange outcome apparently went unnoticed by Roberts.

Last year I wrote an analysis of the cases against Trump, and I noted similarities to the case against Richard Nixon, the only American president to resign his office. Nixon was named an “unindicted co-conspirator” by the Watergate grand jury. There is no question Nixon would have been indicted following his resignation for, among other crimes, ordering the CIA to block an FBI investigation into the Watergate break-in. The only reason that didn’t happen was that Nixon’s successor, President Gerald Ford, issued a pardon to the former president.

During David Frost’s 1977 series of interviews with Richard Nixon, Nixon (in)famously said “when the President does it, that means that it is not illegal, by definition.” It has been assumed since 1977 that Nixon was wrong. The Court’s majority appears to have changed that. Nixon must be laughing in his grave while Hamilton is spinning in his.

What’s Next?

The Court sends the case back to the District Court, where Judge Tanya Chutkan in Washington, DC will have to review the indictment to “carefully analyze the indictment’s remaining allegations to determine whether they too involve conduct for which a president must be immune from prosecution. And the parties and the District Court must ensure that sufficient allegations support the indictment’s charges without such conduct.” The court’s conservative majority also said that testimony or private records of the president or his advisers examining such conduct cannot be admitted as evidence at trial.

This evidentiary restriction may upset the New York prosecution which resulted in a jury verdict finding Trump guilty of falsifying business records to cover-up hush money payments made to silence a porn star during the 2016 campaign. That’s because the district attorney submitted evidence that included statements made by Trump and testimony from Trump aides including former communications director Hope Hicks. Under the Court’s new ruling that evidence may be inadmissible. The New York court may have to drop some of the counts on which the ruling has relied, and/or declare a mistrial and order a new one where some of the evidence will be suppressed. Sentencing, scheduled for next week, has been postponed.

As to the federal allegations that Trump pushed then-Vice President Mike Pence to delay Congress’ certification of the Electoral College votes on Jan. 6, 2021, the court said it is the government’s burden to rebut the presumption that Trump has immunity. The presumption now is that any conversation between a president and a vice president would have immunity. If the majority’s goal was to keep Pence’s testimony hidden, at least until after the election, it might have the opposite effect. Judge Chutkan may schedule an evidentiary hearing before the election to hear the testimony so she can determine what is and what is not admissible. We could still see Pence, under oath, revealing exactly what Trump told him on January 6th.

Regarding the rest of the conduct alleged in the charges against Trump, namely that he worked to organize false slates of electors, communicated with outside attorneys to execute that plan, and urged his supporters to descend on Washington on Jan. 6, the court ruled any protections from prosecution “may depend on the content of context” of the allegations. And oh yes, the courts are not permitted to consider Trump’s “state of mind” in evaluating the evidence.

Justice Clarence Thomas, the man who has taken tens of millions of dollars in gifts and services since assuming the bench and has so many conflicts of interest he wouldn’t meet the ethics requirements for dogcatcher, chimed in with a concurring opinion. Thomas has taken to inviting right wing lawyers to file cases on various issues. Here Thomas invites challenges to the appointment of the special counsel Jack Smith. He believes the appointment is illegal. This issue has been adjudicated several times before, but Thomas is clearly signaling that he wants it revisited. A finding that Smith was illegally appointed could jeopardize all the cases against Trump and the January 6th, 2021, insurrectionists. Thomas’ wife vigorously lobbied on behalf of the people who plotted to overturn the election results on January 6.

The Dissent

The opinion provoked such a strong dissent from the three liberal justices that Roberts was triggered to criticize them in his majority opinion, “As for the dissents, they strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today….”

Joined by Justices Elena Kagan and Ketanji Brown Jackson, Justice Sonia Sotomayor wrote in a 30-page dissent that the decision “reshapes the institution of the presidency” by insulating presidents from criminal liability and accused the conservative majority of inventing an “atextual, ahistorical, and unjustifiable immunity that puts the president above the law.”

“It makes a mockery of the principle, foundational to our Constitution and system of government, that no man is above the law,” the three wrote. Sotomayor said the conservative majority failed to place a concrete limit on its decision and narrows the acts that can be deemed unofficial.

“The majority today endorses an expansive vision of presidential immunity that was never recognized by the Founders, any sitting president, the Executive Branch, or even President Trump’s lawyers, until now,” Sotomayor wrote. “Settled understandings of the Constitution are of little use to the majority in this case, and so it ignores them.” She added that while the court suggested a president’s actions could be reviewed, it simultaneously held that evidence about a president’s official actions must be excluded making it difficult if not impossible for the government to prove its case.

Sotomayor called the decision “deeply wrong,” and warned that it will have long-term consequences. “The court effectively creates a law-free zone around the president, upsetting the status quo that has existed since the founding,” she said. She gave examples of possible presidential action: “Orders the Navy’s SEAL team 6 to assassinate a political rival? Immune. Organizes a military coup to hold on to power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”

“In every use of official power, the president is now a king above the law,” she said. Sotomayor ended her opinion stating, “with fear for our democracy, I dissent.”

I’ll add another example, a president orders his Attorney General to seize the voting machines and destroy all the votes for his opponent. Under new Court decision conversations with DOJ and president are absolutely immune as core presidential actions. So this action is permissible.

The faulty logic of the Court’s ruling was clearly summarized in Justice Jackson’s dissent, “The official-versus-unofficial act distinction seems both arbitrary and irrational, for it suggests that the unofficial criminal acts of a President are the only ones worthy of prosecution.

Legal commentators tended to agree with the dissenters. Former Nixon White House counsel John Dean said Monday that had the court’s ruling been in force in the early 1970s, history could have turned out very differently. “As I looked at it, I realized Richard Nixon would have had a pass” because the evidence against him was based on official acts the Supreme Court has deemed immune from prosecution, Dean told reporters.

The Supreme Court put Trump above the law, Adam Serwer writes in the Atlantic, and it gave him permission for a despotic second term.

A footnote. In March 1933, The Enabling Act become law in Germany, giving the chief executive power to enforce his own laws without checks and balances. The passing of the Act marked the formal transition from democratic republic to totalitarian dictatorship. Six months later, it was a one party state. Everything the Nazis did was legal, according to German law.

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