Seal Team Six, you have a go.
If you want one take-away from the court’s very bad opinion yesterday, that’s it.
Yes, the opinion puts the final nail in the coffin for former President Trump’s pre-November prosecution on charges that he fomented an attempted coup on Jan. 6, 2021. But it’s much worse than that. In short, the court concluded that a president has absolute immunity from prosecution for any official acts, including any orders he gives to his attorney general. While the court doesn’t mention it, that obviously goes double for any orders he gives as commander-in-chief, including, it necessarily follows, an order to execute an American citizen who happens to be a political rival.
In her dissent Justice Sonia Sotomayor observes that, “Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done.”
Don’t take this the wrong way, Justice Sotomayor, but I wish I had a camera right now. Human nature being what it is, it is worse than naive even to hope no one will take advantage of this invitation to lawlessness and even test its limits — quite possibly all too soon.
There’s a lot more in this opinion which, with dissents, come out to 119 pages, but here are some of the lowlights.
For one thing, the majority’s image of an all-powerful and uncheckable presidency that cannot afford to be distracted by “a pall of potential prosecution” has nothing to do with originalism. They’ve made it up out of their own heads. There is nothing in the Constitution that says the president can never be questioned about any of his actions. If the Founders had wanted to include an executive branch equivalent of the speech and debate clause, they were perfectly capable of doing so. They did not.
The majority counters that there is no separation of powers clause, either. “Yet that doctrine is undoubtedly carved into the Constitution’s text by its three articles separating powers and vesting the executive power solely in the president.”
That’s true. The difference is that the doctrine of separation of powers is logically necessary to harmonize the various powers granted to the three branches of government, whereas the court’s version of presidential immunity is only necessary to protect the majority’s personal — and entirely untextual — conception of what the presidency ought to be.
For example, the majority is concerned that, “A president inclined to take one course of action based on the public interest may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office.” This is certainly one way to look at how the president ought to discharge his or her duties, but you don’t get it from the text — not even the penumbras — of the Constitution itself.
The majority has arbitrarily decided that presidential hesitancy to commit crimes is a bug rather than a feature. What if a president inclined to take one course of action based on his or her private interest might instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office? If recent history is anything to go by, that’s a far more likely scenario.
Finally, and perhaps most damningly, the majority firmly sticks its nose exactly where it has no business being: politics. Here’s the ultimate rationalization for what the court has done.
“The dissents overlook the more likely prospect of an executive branch that 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….Without immunity, such types of prosecutions of ex-presidents could quickly become routine. The enfeebling of the presidency and our government that would result from such a cycle of factional strife is exactly what the Framers intended to avoid.”
There is so much wrong with this that it’s hard to know where to start.
First, earlier in the opinion, the majority makes a big deal of how the president has “exclusive authority and absolute discretion to decide which crimes to investigate and prosecute” and that “his discretion in exercising such authority cannot be subject to further judicial examination.” So how is it that the Supreme Court is taking it on itself to forbid a sitting president from prosecuting a former one? You’d think that authority wouldn’t be “subject to further judicial examination.”
Ultimately, the executive branch, not the courts, knows what’s best for the executive branch. There is no reasonable interpretation of the Constitution, textual or otherwise, where it is the Supreme Court’s job to prevent “factional strife.” Although avoiding factional strife is probably a good idea, that’s something that has to be addressed by the political branches. And if there is a rash of unwise prosecutions of ex-presidents, then it’s up to the voters to sort it out, not the courts. Provided, of course, that democracy still functions.
And that’s not something any of us can take for granted. The bottom line here is that the government is alleging that Donald Trump tried to stage a coup. This is not an “extreme hypothetical.” It is not “fearmongering.” It is a thing that happened and we all watched it happen. And the Supreme Court has just said that all might be perfectly fine and well within the scope of the president’s constitutional duties.
This is not okay.
Chris Truax is a charter member of the Society for the Rule of Law and an appellate attorney.
