No wonder the public perceives the justices not as jurists but as politicians in robes.
Does the president have immunity from criminal prosecution? Or, to put the question more finely, does Donald Trump?
It should be an easy question for the textualist. Nothing in the Constitution grants him immunity. The framers knew how to put an immunity clause in the Constitution. Many of the states did; the framers chose not to. Case closed.
It should be an easy question for an originalist. The original understanding in 1789 was that the president was not a king who could do no wrong. The president was the servant of the law. He was not above it. The founders certainly thought that. Again, case closed.
The only case remotely on point is the 1982 Supreme Court decision in Nixon v. Fitzgerald. Richard Nixon fired Fitzgerald because he was a whistleblower, and Fitzgerald sued civilly. The court held that Nixon was immune from civil liability, but stressed that the immunity would not apply to criminal responsibility. Enough! Case closed.
But listening to the Supreme Court oral argument on Thursday, the debate felt more like a congressional hearing than a judicial colloquy over what lawyers call the facts of the case. The case is supposed to be about Donald Trump and his attempt to overturn an election by illegal means. “I’m not discussing the particular facts of this case,” thundered Justice Samuel Alito.
Justice Neil Gorsuch made the banal pronouncement, sure to make the quote of the week in the pages of the mainstream media: “we are writing a rule for the ages.” Frightening!
Gorsuch wondered what would happen if future presidents “were under fear” that their successors were going to “criminally prosecute” them for official acts like “drone strikes,” though fomenting an insurrection to stay in power is hardly in the same zip code as launching a drone against terrorists in a foreign country. The distinction between “official acts” for which the president would have immunity and “private acts” where he would not is totally unworkable. As Chief Justice Roberts mused, if a president accepts a million dollar bribe to appoint his favorite lawyer an ambassador, you can’t prove the corrupt conduct without proving the official conduct. It’s like love and marriage, “you can’t have one without the other.” The problem can be resolved at trial with appropriate jury instructions.
One participant in the conservative pile-on was Justice Clarence Thomas, whose wife has been closely identified with the Jan. 6 insurrection. How he could fail to recuse himself boggles the mind. If it were a congressional hearing, the chairman of his committee would surely insist that he step aside. He appeared to absolve Trump from the bench by reflecting that presidents engage in coups with impunity. He cited “Operation Mongoose,” Kennedy’s plan for Cuba when he tried to overthrow Castro. In the Thomas family, all coups are created equal.
No wonder the public perceives the justices not as jurists but as politicians in robes. The Republican appointees are all too willing to give Trump a pass on Jan. 6. This may be understandable. But still, the law is the law, and the justices are sworn to uphold it.
Let’s also look at the policy considerations, since that is what appears to be trumping the rule of law these days. The Supreme Court’s conservatives seemed obsessed with the impact of their ruling on hypothetical future presidents engaging in hypothetical conduct which, like the Immaculate Conception, has never occurred before or since.
Trump claims that to criminalize presidential decisions chills the president from making those tough calls in the Oval Office necessary to protect the country. But, in 234 years, no president other than Trump has been indicted for conduct in office (unless you throw in Nixon, who only made it to “unindicted co-conspirator”). And all made the tough calls without extraneous consideration.
Nixon is a great case in point. In his famous interview with David Frost, he maintained that “when the president does it, that means it is not illegal,” but he hastened to dial it back, saying “but I do not mean to suggest the president is above the law.”
And Nixon was a lawyer. He would not have accepted a pardon, and Ford would not have granted him one, if either thought the former president had immunity.
Justice Brett Kavanaugh thinks it was a good thing for the country that Ford pardoned Nixon; others may differ. The thinking is that the criminal prosecution of a former president “would tear the country apart.” But look at the New York election interference case involving Trump’s coverup of his payment to a porn star before the 2016 election. Pro-Trump protestors outside the courthouse are few and far between, even though Trump prophesied last March “death and destruction” if he was ever indicted.
An honest president needs no immunity. He would not even seriously think of ordering the assassination of a political rival. He (or one day she) will never leave office in fear of criminal prosecution. With all our partisan divide, it has never happened in two centuries of the American experiment.
One thing is certain. If the Supreme Court waits until the end of the June term to hold that a president has little or no criminal immunity, there is only a slender chance of trying the case before the election, and they will have handed Trump a victory. If, as many legal experts predict, the justices remand the case to the district court for hearings into what in the indictment is official and what is private about Trump’s alleged conduct, you can say sayonara to the case. Trump will have slithered out of it — a dark day for democracy and the rule of law. Without saying so, the Supreme Court will have immunized Donald Trump.
If the oral argument is any indication of where they are headed, the Roberts Court will go down in history as the court that gave away our precious democracy to the dictator.
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.
