What Just Happened? Immunity from Hysteria

The Chief Justice of the Supreme Court walks into a bar. The bartender asks “what are you drinking?”

The Justice says, “I’ll have an Old Fashioned. Anything new happening today?”

The bartender shrugs, “not unless you count that the American justice system is dying.”

“Is that so?” the Justice replies. “Make it a double then!”

Have you read the Supreme Court ruling in the case of Trump vs the United States? At one hundred and nineteen pages, few have. But that didn’t stop the hype machine from making instant analysis, just to get you riled. Fear not, I have now read it, along with a bunch (technical term) of legal analysis–both for and against. And now I’ll give you what you need to consider to form an enlightened opinion.

First off, let’s demolish some partisan talking points, so they don’t cloud our thinking. Prior to the announcement, which came on the last possible day for release, some talking heads speculated that the Supreme Court had already given former President Trump what he wanted, since the delay involved in their deliberations pushed the trial charges brought by special counsel Jack Smith almost certainly past the election in November. According to this line of (dare I call it) thinking, the Supreme Court was in the tank for Trump, regardless of what they decided, since Trump could not be found guilty before voters chose for President. Except for the fact that he is already once-convicted, many times indicted, and is there anybody who doesn’t have a formed opinion about Donald J. Trump? Some may not know whether they will or won’t vote for him, but no conviction was going to stop him from being the GOP nominee. And by the way, there was a very good reason for the long delay: this was a seminal case in American jurisprudence!

From the breathless discussion about Seal Team Six (more on that later), you might think the President was once not above the law, but suddenly that changed on July first. Except it didn’t. Since the Clinton presidency, all Attorneys General and all Departments of Justice have held that a sitting President cannot be charged or indicted for official acts during his term in office. So the President, while in office, has always been somewhat “above the law.” That was so for Clinton, Bush, Obama, Trump, and Biden. Any one of them could dial up the Seal Team, and face no criminal charge.

But that was only a departmental policy, not a decision from any court. Many courts had mentioned it, but the Supreme Court had never decisively ruled on it. The only case involving Presidential immunity was Nixon vs Fitzgerald, which held that in civil cases, the President “is entitled to absolute immunity from damages liability predicated on his official acts.” So this Trump case was incredibly important, as there was little precedent, except as noted. That precedent laid out important reasons a President could not be sued for damages, as it would prevent the President from completing his duties. So the concept of the President, as President, not being the same under the law was well understood. And the understanding included the concept that political or policy disagreements were best dealt with in the political process, up to and including impeachment.

What did the Supreme Court hold in Trump vs. the United States? It created a three part test for immunity.

• For official acts that are part of the President’s core functions, he has absolute immunity. So in appointing ambassadors or judges, ordering the military, hiring or firing federal officials and the like, the only appropriate redress is via elections or impeachment. No prosecutor can charge him, try him, or convict him.
• For all other official acts, he has presumptive immunity. These are acts where as President he shares authority, say, with the Congress, for example in executing appropriations. Presumptive immunity means a prosecutor could charge/try/convict him, but first the prosecutor must convince the judge that such an action will not infringe on the President’s ability to do his job. Which is a very high bar.
• For all unofficial acts, the President has no immunity. If President Trump decides to rob a 7/11, he can be perp-walked into trial.

While some are acting like American justice just died, I would note that some honesty peaked through the blustery hyperbole. In the New York Times, Maggie Haberman wrote, “The broad contours of the ruling — that presidents would be entitled to substantial protection for official acts — had been expected by political and court watchers for months.” If you only follow the news through the lens of Donald Trump, you might not know this, but informed opinion had pretty much figured this ruling out in advance. While the case was named for the former President, and directly affects his possible trials, the Supreme Court had a duty to provide a ruling protecting the Presidency, the nation, and the Constitution. Neither to protect Donald Trump, nor “get him.”

What the decision did was create a very clear test for the lower court to administer. Some of Jack Smith’s charges against former President Trump are now excluded as core functions. Some will have presumptive immunity. Some may be unofficial, and can proceed to trial. That won’t happen fast enough for anti-Trump partisans, but adherence to the Constitution is more important than getting Trump. The other, very important effect of this ruling is what it preempted. I can guarantee you that if the ruling had been of the “no-immunity” variety, many charges were pending. Charges against Presidents Clinton & Obama for drone strikes, including ones which killed American citizens. Charges against Biden as an accessory to murder for the illegal immigrant attacks in Texas and Georgia. I’m sure the left would have found more things with which to charge Bush and Trump.

It doesn’t matter whether you think any of these charges would have stuck. The precedent would be, charge the President you don’t like. And it would have been debilitating to the presidency, as Chief Justice Roberts noted in the majority opinion. That was the world we avoided, and it was not hypothetical. It was only waiting to be born.

Finally, what of the oft-quoted “Seal Team Six” hypothetical? If anybody mentions this to you, you will immediately know they are either mouthing a meaningless partisan talking point, or seriously confused. “Wait just a minute, Pat, didn’t Justice Sotomayor raise this very issue in her dissent?” Yes, yes she did. Her dissents are legend among serious jurists. That’s not me talking: she onetime got so lost in the emotions of her argument, she incurred a written rebuke (in Daimler vs Bauman) from Justice Ruth Bader Ginsberg! One can only imagine how bad things must be for RBG to have publicly criticized a fellow justice.

To make the point, arguing that this ruling fails to protect us from Seal Team Six is like arguing that the Covid vaccine doesn’t prevent cancer. Right. It doesn’t, nor was it intended to. President Biden can indeed order the Seal team to assassinate former President Trump right now. What does protect us from such an action? Not a Supreme Court decision on Presidential immunity, but the republican (note the small “r”) values of our government which demand fealty to a Constitution, not a person. An illegal order will not be followed by the chain of command, not only because they have no immunity (which in my example, President Biden would have!), but because they know it is wrong. If you think that is too slim a reed for protection, riddle me this: during the fifty-some odd years of the Cold War, nothing kept the President from ordering a random, reasonless nuclear strike. Yet I will bet–if you’re old enough–you never lost a moment of sleep about it. For the same reason.

Justice Sotomayor does make a strong argument that since all Presidents up to this point thought they were criminally liable after office, what could be the possible threat impeding them from executing their duties? But she gives the game away by failing to note the change: when has any former President faced four indictments and eighty-eight felony counts, suddenly applied in the months preceding an re-election campaign? And she signs off not with the customary “respectfully dissent” but “with fear for our democracy (sic).” With that, she models Lieutenant Commander Galloway in “A Few Good Men.”

So stop with the Seal Team Six (and other equally ridiculous hypotheticals) already. Understand that a world where a sitting or former President could be charged, tried, and convicted for official actions was not a hypothetical, but a nightmare waiting to happen. Consider what is going on in the news, the courts and public opinion not in terms of Trump, but in terms of how things will be when Trump is only in the history books.

The decision in Trump vs. the United States serves to enable a presidency without enabling any specific abuses. It prevents the kind of litigation which would only serve to tie the executive branch in knots. Whether it helps Trump in the short term is not the most significant factor. But hey, revel in another round of hypotheticals if you prefer.

Postscript: The immunity ruling highlights another problem with the need to “get Trump” before this year’s election. The New York state felony trial, a state jurisdiction and dealing with strictly non-presidential conduct, was the one trial most secured from Trump’s ability to pardon, immunize, or halt if he were to regain office. Judge Merchan pushed the trial forward relentlessly, despite objections by Trump’s defense team and counsel from outside observers that there were many reasons to take one’s time. This became the first trial to convict a former President on a felony charge. Now, because the judge admitted to court evidence from White House personnel, he has delayed sentencing at least until September, as he considers whether his admission of such evidence was prohibited by the ruling in Trump vs the United States. Whatever you thought of the case (I wasn’t a fan, although it was obvious Trump was guilty as charged), once again haste has complicated the outcome.