The Supreme Court’s opinion in Trump v. United States may well be the most consequential opinion when it comes to the question of the reach of executive power, executive immunity, and our constitutional system of checks and balances. Today, the Court relinquished its constitutional obligations for political expediency.
It would be easy for me to provide some levity. Usually, in a moment such as this, I would channel the great Georgia humorist Lewis Grizzard. On December 3, 1984, Grizzard published a column in the Atlanta Constitution after the Georgia Bulldogs lost to Georgia Tech that simply read, “Frankly, I don’t want to talk about it.” The rest of the space was left blank.
I don’t feel like injecting levity in this situation.
The Court held this morning that a president cannot be prosecuted for core constitutional acts (absolute immunity) and has at least presumptive immunity for official acts. There isn’t immunity for unofficial acts.
Chief Justice John Roberts authored the majority opinion. He was joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. Justice Thomas wrote a concurring opinion in which he called the constitutionality of the special counsel into question. Of course, that wasn’t the question before the Court. Justice Barrett also wrote a partial concurrence and dissent.
Chief Justice Roberts writes, “We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity. At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient.”
So, we have some limitations on immunity, but the “core constitutional powers” of the presidency are quite broad. The Court mentions many, if not most of those powers. Some legal theories of presidential power, such as the unitary executive theory, shred the constitutional system of checks and balances. The Court took it a step further by preventing the use of “testimony or private records of the President” that may show criminality in the prosecution of unofficial acts that are related to official acts. This was Justice Barrett’s criticism of the majority opinion.
Chief Justice Roberts writes, “[T]he prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act. See 18 U. S. C. §201(b)(2). What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety.”
Justice Barrett’s concurrence actually goes further than the majority opinion. She states, “The President has no authority over state legislatures or their leadership, so it is hard to see how prosecuting him for crimes committed when dealing with the Arizona House Speaker would unconstitutionally intrude on executive power.”
On the issue of evidence, Justice Barrett takes an objective view, unlike Chief Justice Roberts. She writes, “The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable. Consider a bribery prosecution—a charge not at issue here but one that provides a useful example. The federal bribery statute forbids any public official to seek or accept a thing of value ‘for or because of any official act.’ 18 U. S. C. §201(c). The Constitution, of course, does not authorize a President to seek or accept bribes, so the Government may prosecute him if he does so.”
I find myself agreeing with the dissent. There were issues that came up during the oral arguments, like the possibility of the assassination of a political rival being covered as an official act. I get that it’s an extreme example, but it’s one that came up during oral arguments. With some of the divisive rhetoric from Trump on the campaign trial and his very broad claims of presidential power, we can’t discount abuses of civil liberties and the denial of due process. We have to take the rhetoric seriously.
Justice Sonia Sotomayor authored the dissent, and she was joined by Justice Kagan Justice Jackson, the latter of whom wrote her own dissent. Merely quoting from Justice Sotomayor’s dissent doesn’t give it the proper respect that it deserves. She dismantles the majority’s opinion using case law, the history of the drafting of the Constitution, and early questions about the scope of presidential power, as well as the concerns about broad presidential power expressed by the framers.
Justice Sotomayor’s dissent is powerful and stinging. She writes, “The majority makes three moves that, in effect, completely insulate Presidents from criminal liability. First, the majority creates absolute immunity for the President’s exercise of ‘core constitutional powers.’ Ante, at 6. This holding is unnecessary on the facts of the indictment, and the majority’s attempt to apply it to the facts expands the concept of core powers beyond any recognizable bounds. In any event, it is quickly eclipsed by the second move, which is to create expansive immunity for all ‘official act[s].’ Ante, at 14. Whether described as presumptive or absolute, under the majority’s rule, a President’s use of any official power for any purpose, even the most corrupt, is immune from prosecution. That is just as bad as it sounds, and it is baseless. Finally, the majority declares that evidence concerning acts for which the President is immune can play no role in any criminal prosecution against him. See ante, at 30–32. That holding, which will prevent the Government from using a President’s official acts to prove knowledge or intent in prosecuting private offenses, is nonsensical.”
Justice Sotomayor also mentions that the Constitution itself doesn’t provide immunity to the president. She notes that this appears to be on purpose because Article I provides immunity in the Speech and Debate Clause. Famously, Sen. Mike Gravel (D-AK) employed the Speech and Debate Clause in June 1971 to read the Pentagon Papers, which were classified at the time, during a subcommittee hearing after Richard Nixon claimed he had the power to from The New York Times from publishing classified information. The Court eventually sided with the Times.
She also attacks the nonsensical unofficial act in the course of an official act aspect of the case.
“Even though the majority’s immunity analysis purports to leave unofficial acts open to prosecution, its draconian approach to official-acts evidence deprives these prosecutions of any teeth. If the former President cannot be held criminally liable for his official acts, those acts should still be admissible to prove knowledge or intent in criminal prosecutions of unofficial acts. For instance, the majority struggles with classifying whether a President’s speech is in his capacity as President (official act) or as a candidate (unofficial act),” Justice Sotomayor writes. “Imagine a President states in an official speech that he intends to stop a political rival from passing legislation that he opposes, no matter what it takes to do so (official act). He then hires a private hitman to murder that political rival (unofficial act). Under the majority’s rule, the murder indictment could include no allegation of the President’s public admission of premeditated intent to support the mens rea of murder. That is a strange result, to say the least.”
Last week, I was texting with someone I know and said that I do what I do “to make this a better place, not only for your daughter, but for my own step-daughter.” My step-daughter (technically, she’s not my step-daughter, but she will be soon enough) often comes to mind when I think about our politics, as well as other aspects of public policy. I don’t know what to do. I work in public policy for a living, and I feel helpless.
The United States has experienced so many unprecedented events in recent years. Added to that, our politics are just so vitriolic and hateful. We’re seemingly past hyperpartisanship and into an unknown area of uncertainty as a nation. Our path forward isn’t clear. We’re far weaker than we ever realized. We’re vulnerable, frail, and falling apart.
It’s ironic that the Court issued this opinion the day before the anniversary of the ratification of the Declaration of Independence by the Second Continental Congress. America didn’t end today. I’m not saying it did, but what made the American experiment so unique (constitutionally limited government, protected rights, etc.) is eroding. Some are blindly cheering that along.