The Supreme Court yesterday issued a ruling which effectively puts anything a president does as an official act as out of reach of prosecution of any kind.
Though this may be challenged one day, it also appears to have drastically altered Congress’s power to impeach a president for “high crimes and misdemeanors” so long as those crimes were committed as “official acts”.
Whether Chief Justice John G. Roberts, Jr. meant it to come out this way, the decision will go down, as he promised while they were debating the case, as a precedent “for the ages”.
The issue brought before the Court which resulted in this decision was an appeal by Donald Trump’s attorneys in a trial he is facing in the District of Columbia. As summarized in the full text of the Supreme Court decision made yesterday, “The indictment alleged that after losing that election, Trump conspired to overturn it by spreading knowingly false claims of election fraud to obstruct the collecting, counting, and certifying of the election results.” As specifics, that case involves, among multiple other issues, allegations of Trump’s involvement in directing rioters to break into the U.S. Capitol on January 6, 2021, and supporting their attempt to subvert the Constitution by preventing the Senate from confirming Electoral College balloting.
The lawyers asked the Supreme Court to rule on whether Donald Trump had absolute immunity for all acts carried out while president. The prosecution said there should be no absolute immunity and that holding Trump accountable and subject to criminal charges in court was legally valid.
In the majority opinion written by Chief Justice Roberts, he summarized the net of a 119-page document in just a few short sentences:
“Held: 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.”
Roberts also declared in the opinion that if a president were charged with crimes based on “unofficial acts”, it would not be legal to use any evidence associated with those official acts as evidence in prosecuting those other criminal actions. His logic for that was that making that evidence available for prosecuting “unofficial acts” would “permit a prosecutor to do indirectly what he cannot do directly — invite the jury to examine acts for which a President is immune from prosecution to nonetheless prove his liability on any charge.”
Presumably those kinds of evidence would exclude conversations, memoranda, and emails, for example, which involved any member of the White House or Executive Branch, who were gathering in their official capacities while still conspiring to commit any number of other unofficial crimes.
Roberts justified his broad conclusions by claiming the Framers of the Constitution would have intended there to be broad immunity for presidents so that there could be an “energetic, independent executive”. He wrote that there was no possible scenario where they would have allowed for an executive branch which “cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next.”
The ruling went on to say that by this argument, Trump’s actions in pushing Vice President Mike Pence not to certify the electoral college votes on January 6, 2021, were “presumptively immune” from prosecution.
For those concerned this could allow a president literally to get away with any number of crimes not associated with his Constitutional responsibilities, Roberts said the unofficial conduct can be prosecuted provided those legal proceedings respect “the authority and functions of the executive branch” first and foremost.
Roberts was joined by the five other conservative justices on the court in his ruling. Those include Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barret.
In a separate concurring opinion, Justice Barrett agreed with the decision but disagreed that evidence associated with the official acts of presidents should be excluded from trials of presidents for their unofficial acts.
“The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable,” she wrote.
Her disagreement does not change the majority conclusions Roberts authored.
In a ruling of this significant magnitude, the Supreme Court has in the past pushed for a means to issue a ruling which all justices would stand behind. That did not happen in this case.
In a savage dissenting opinion, Justice Sonia Sotomayor, writing on behalf of herself and the two other liberal justices Elena Kagan and Ketanji Brown Jackson, called out the ruling for its glaring disrespect of the Constitution and the damning implications for what it would mean in the future.
Declaring this “extraordinary rule has no basis in law”, Sotomayor said the decision created a “mockery of the principle” that no one, not even the president, should be out of the reach of the law regardless of whether the acts being charged as crimes were official or unofficial.
Reading aloud from her dissenting opinion when it was released, Sotomayor said the decision sidestepped the issue of motive when it comes to how a president is carrying out his duties. With this ruling in place, a president with even the most corrupt of motives could use the immunity shield for official acts to prevent being prosecuted for what are clearly criminal actions.
In her opinion, Sotomayor gave an example of that. She said that this decision would allow for a president to give orders to his military to assassinate a political opponent or to stage a political coup and be protected for prosecution.
In another example she brought up, if the president were to accept a bribe in return for pardoning someone, under the current ruling Sotomayor said the president would now be “immune” from prosecution. The logic for that immunity was that since giving pardons is part of the president’s range of “official acts” he is now protected from challenges about that.
“Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done,” Sotomayor went on. “The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.”
“Argument by argument, the majority invents immunity through brute force,” she continued. ““Under scrutiny, its arguments crumble.”
“Today’s Court, however, has replaced a presumption of equality before the law with a presumption that the President is above the law for all of his official acts,” she added.
“With fear for our democracy, I dissent,” Sotomayor concluded.
Justice Jackson also wrote a separate dissenting opinion of her own. She said what the majority had done in this Constitution-shattering ruling was to replace the “individual accountability model” which had applied to date to all citizens of the U.S. with a new “Presidential accountability model”.
“The majority of my colleagues seem to have put their trust in our Court’s ability to prevent Presidents from becoming Kings through case-by-case application of the indeterminate standards of their new Presidential accountability paradigm,” she said in her statement. “I fear that they are wrong. But, for all our sakes, I hope that they are right.”
In his majority opinion, Chief Justice Roberts made the choice to criticize the dissenting opinions, despite that dissenting opinions are considered by legal experts as critical documentation of the arguments presented by those who vote against a ruling, regardless of how contentious they may be.
Stopping just short of calling the response of the liberal justices as an overreaction, he wrote that the dissents set “a tone of chilling doom that is wholly disproportionate to what the Court actually does today.”
Roberts reasserted that, despite the clear wording which allows presidents to do whatever this wish as “official acts” without risk of prosecution, he believes the decision as written
Operationally what the decision means is that in multiple cases, including as a minimum the District of Columbia one which was the reason this came before the court, the Georgia election obstruction case, and likely the classified documents case underway in Florida, will all be drastically affected by this decision. In each situation charges may be dropped entirely from the list Trump is facing, and substantial evidence connected with them which was gathered associated with when Trump was still in the White House may be no longer be admitted.
The immediate impact on the D.C. case which was the reason the Court made this ruling is that it has now been thrown back down to the lower court to reexamine, based on this precedent. It will create potentially months’ long delays in a trial which is already well overdue.
If Trump wins the presidential election, of course, all this could be moot. As president he will likely pardon himself and all cronies involved in the various criminal trials which are still pending. Based on the current ruling, since that presidential pardons are official acts, Trump might just get away with everything.