Deliberating presidential immunity

Deliberatus is back and, wow, another fine mess we’ve gotten ourselves into. We are here today to deliberate the Supreme Court’s recent ruling in Trump v United States. Did the majority get it right by granting president’s wide immunity for breaking criminal laws? Let’s dig in.

By now you know the background: Donald Trump lost the 2020 election and  then a grand jury indicted him for spreading false information to try to stay in office. Because he can’t accept losing anything, he unsurprisingly appealed to the Supreme Court to dismiss the whole charges on the grounds that as president he was immune from criminal prosecution for carrying out his official duties.

The majority

By a 6-3 vote, the Court found the president is entitled 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.”

There’s a lot to unpack there. Let’s start with “conclusive and preclusive constitutional authority”. That means the power granted by the Constitution. The Court said Congress can’t pass laws to intrude on that and the Court can’t uphold such a law or criminal convictions based on it. That makes sense. Separation of powers is the core principle of our government triad. Two branches figuratively conspiring to restrict the power of another cannot be allowed. In other words, if the Constitution says a president can do it, the rest of government can’t touch this.

If only it were that simple. The president can of course do many more things than the Constitution allows. Those powers are granted by Congress and, if challenged, upheld by the courts (we’ll set aside the fact that the court can strike down Congress granting powers to the Executive if the Court chooses; is irrelevant here). This was not as clear cut as dealing with those conclusive and preclusive powers.

So the Court had to do some digging. It found a ruling from 1997 that said, “The Framers “sought to encourage energetic, vigorous, decisive, and speedy execution of the laws by placing in the hands of a single, constitutionally indispensable, individual the ultimate authority that, in respect to the other branches, the Constitution divides among many.” The Court decided that the only way a president can be “energetic, vigorous, decisive and speedy” is if the president is presumed to be immune from criminal prosecution for breaking a law in carrying out these secondary powers. (Secondary is my term, not the Court’s. I’m trying to clearly separate that some powers are directly from the Constitution, aka primary powers, and some aren’t, aka secondary powers.)

The Court’s logic is that the president may chose one course of action over another if the president fears criminal prosecution. The president could not be “bold and unhesitating” in that environment, in the Court’s view. Furthermore, the Court says the Executive Branch’s independence would be “significantly undermined” if its leader is routinely subject to criminal prosecution.

Then the Court said, “At a minimum, the President must therefore be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no “dangers of intrusion on the authority and functions of the Executive Branch.” Problem…not solved. That immunity could be absolute or presumed. The Court didn’t decide that one way or the other because the Trump case isn’t at the right place to decide that, and the majority justices don’t think one case in more than 200 years is enough to really figure this out. Jesus.

Lastly, the Court clarified that presidents receive no immunity from their unofficial acts. If a president engages in sports betting within the State of California—where sports betting is illegal—the president may be prosecuted.

Toward the end of its ruling, the high court got a little pissed off at lower courts for rushing this case through without analyzing whether or not then-President Trump’s conduct was official or unofficial. That matters because, as I just said, he would have no immunity if the conduct was determined to be unofficial. Roberts, writing for the majority, would rather his court not conduct that review itself because the Supreme Court is the final word on any matter.

But, like all of us, Roberts can’t help himself. His opinion gives lower courts some guidance on how to draw the line between official and unofficial. “In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such an inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II interests that immunity seeks to protect.” Why? Because “[i]t would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government.”

He uses that theory to specifically address the indictment of the former president, “The indictment’s allegations that the requested investigations were “sham[s]” or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. [reference omitted]. And the President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.” He goes on to rule Trump was conducting official acts when pressuring then Vice President Mike Pence to interfere with counting electoral votes because the Constitution gives Pence that role and a president is allowed to talk to his VP in order to advance his agenda in Congress. Roberts rightly notes that such counting is not an Executive Branch function, but determines that doesn’t matter because the government has to rebut immunity much like a prosecutor has to prove a suspected criminal is guilty, not merely unguilty. The lower courts, Roberts wrote, can figure out the rest.

Then Roberts takes a notable turn that Justice Barrett found disagreeable. It would “eviscerate” the immunity the Court recognized, he said, if actions under that immunity are allowed to be used as evidence in a trial for actions that do not carry immunity. That can’t be allowed because it would “distort” presidential decision making, something the majority opinion is designed to prevent. Barrett believes that would overly restrict the prosecution of such a case.

The majority opinion closes with Roberts addressing the dissents. This is really just judicial tit for tat. On to the dissent. (Justice Thomas offered a concurrence that is of typically little relevance.)

Justice Sotomayor does not respectfully dissent.

She believes the president does not have blanket immunity because the Framers knew how to grant such a thing and chose note to. In fact, she notes, the Judgment Clause specifically says an impeached and convicted president is still subject to criminal law. This is a solid point and Sotomayor scores one against the textualists for calling this out.

But she falters when citing that  “Our country’s history also points to an established under standing, shared by both Presidents and the Justice Department, that former Presidents are answerable to the criminal law for their official acts.” Deliberatus would like to see the Supreme Court opinions have a slightly firmer base than a wink and a nod.

Sotomayor goes on to say she would allow presidents to be indicted and potentially tried because “the former President still has all the protections our system provides to criminal defendants. If the former President has an argument that a particular statute is unconstitutional as applied to him, then he can move to dismiss the charges on that ground. Indeed, a former President is likely to have legal arguments that would be unavailable to the average criminal defendant.” This is probably her best point. Essentially she’s saying why not let the prosecution be possible and deal with the constitutionality during it. But she’s naive to suggest that “In light of these considerable protections, the majority’s fear that “‘bare allegations of malice,’” ante, at 18 (alteration omitted), would expose former Presidents to trial and conviction is unfounded. Bare allegations of malice would not make it out of the starting gate.” That’s an incredibly generous view of prosecutors. Perhaps Alec Baldwin would like a word?

It’s important to remember this is the principal dissent, so what Sotomayor says has weight. She (and the two concurring Justices) believe the majority takes such a broad view of core powers that virtually everything a president could do (such as pressure his Vice President to interfere with Congress counting electoral votes, one could presume) grants him immunity. “The Court effectively creates a law-free zone around the President…”

That represents the core of Sotomayor’s dissent. I noted earlier she did not respectfully dissent, a reference to her leaving out that word from the end of her opinion. “With fear for our democracy, I dissent.” Frankly, Deliberatus is a little sick of the Justice playing along with the political left’s ongoing effort to undermine the legitimacy of the Supreme Court. She happily fanned those flames in her Dobbs language and does so here with flippant jokes such as if a president “Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune.” An appalling example at the time she wrote it, doubly so in light of what would happen in Pennsylvania three weeks later. Let the talking heads and the firebrands on Twitter speak like this. You sit on the nation’s highest court. Be better. Or resign and headline your own show on MSNBC.

Justice Jackson offered a dissent that quietly picks thru the majority’s points to outline what she believes they got wrong. Her main thrust is all Americans—presidents included—fell under what she calls an “individual accountability” for potential criminal acts, but now the Court puts the President under a different accountability all his own. This is at least a thoughtful rebuttal, though lacking the most tweetable vitriol from the primary dissent. Though still lacking the traditional note of respect.

This is a lot to deliberate, but it’s where Donald Trump put us. Because he’s so consumed with himself, so lost in the alternate universe that exists in his own mind, we, the Americans of 2024, are tasked with figuring out whether or not our presidents can be prosecuted for doing their job.

It should have never even come to this. Donald Trump belongs in the prison cell of history. A rational, patriotic political party would have excommunicated him long ago for any number of crimes legal and political. We, however, have the Republican Party, which inexplicably sold out everything it ever stood for for this guy. Not for Ronald Reagan or George Bush or even Richard Nixon. They did it for Donald Trump.

Now we are left to decide if our Constitution—something the Party now rarely consults except on matters of weapons-grade fire arms in the hands of teenagers—created a president or a king. Or something in between.

Deliberatus believes something in between. No Justice makes a slam dunk case for their opinion here. Roberts’ majority ruling is up there with Roe vs Wade in terms of legislating from the bench. But what is he to do? Stuck with no clear guidance from the Constitution and no historical precedent he had no choice but to make something up. Sotomayor offered nothing of legal relevance whatsoever. Perhaps she is turning into Thomas.

That leaves us with Justice Jackson. Individual accountability. It makes sense as one of those concepts that must also imply some other form of accountability. Jackson calls this “Presidential accountability”. This, she says “holds that a former President may or may not be immune from criminal prosecution for conduct undertaken while in office, to be determined on a case-by-case basis.”

I’m listening.

Then again I’m not. Deliberatus has absolutely no idea what to decide here. American voters failed so hard at the job of electing a competent, trustworthy president that Deliberatus brain done broken. We failed to ask ourselves in the fall of 2016, “Can we trust the candidate Donald J. Trump to execute the powers of the presidency without triggering a constitutional conundrum from which there is no logical way out?” Had we, the answer should have been an emphatic no. It should be the same again in 2024.

So on the matter of whether or not a president is immune from criminal prosecution for acts within is primary or secondary powers, Deliberatus punts the responsibility back to American voters.

Do you, the holders of all political power in these United States, believe a president is above the law? If so, vote for Donald Trump in 2024. If not, vote for someone else.

It is so deliberated.