On the last day of its term, the Supreme Court flew its flag upside down. It gave the man from Mar-a-Lago, the immunity of a monarch and held that bribing a public official is okay so long as the money changes hands after the official act. While they were at it, they kneecapped the administrative state.
With a stroke of the pen, six unelected justices have neutered the government’s ability to deal with the complexities of modern life, such as climate change, food and drug safety, AI, and social media. The courts will handle all these issues, not the executive branch administrative agencies, even if the agencies have greater expertise. The 2022 term, with its evisceration of Roe v. Wade and wrecking ball approach to century-old gun laws in Bruen, was, perhaps, more dramatic, but this term may, in the long run, prove worse. Abortion rights may be reclaimed (for now). Undoing the damage of this term may prove harder.
A unanimous Court wrote in 1984 in the case of Chevron that where the law enacted by Congress was ambiguous, the courts should defer to the administrative agencies’ interpretation if their interpretation was reasonable. This Chevron deference had no greater champion than Justice Antonin Scalia, who was not on the Supreme Court then but was appointed to the judiciary in 1986 by Ronald Reagan as the first Italian-American justice. He believed broad delegation to the executive was “a hallmark of the modern administrative state” and that the doctrine provided a dependable “background rule of law against which Congress can legislate.” Scalia posited in an influential 1989 article that Congress generally wants agencies to exercise discretion and that Chevron deference ensures that legislators “do not have to gamble upon whether, if they say nothing about it in the statute, the ultimate answer [to an interpretive question] will be provided by the courts or rather by the Department of Labor.” The oil company won the case against the enviros. Today’s conservative justices see that as a liberal error that must be airbrushed from history. The present Court is much more radical than even its icon, Scalia.
And, for the pièce de la resistance, the Court radically transformed the relationship between the President and the American people. It has made it difficult, if not impossible, to hold the president accountable for criminal acts committed in office.
Justice Ketanji Brown Jackson, in a sizzling dissent, called the Trump immunity decision a “new paradigm,” framing a world where whether the president will be exempt from legal liability for murder, theft, fraud, or any other reprehensible criminal act. Jackson called the Court’s decision a “five-alarm fire that threatens to consume democratic self-governance and the normal operations of our Government.” Everything now will turn on whether the president committed the act in his “official” or private capacity, such that the answer to the immunity question will always and inevitably be: It depends.
So, if the president colludes with organized crime to tamper with voting machines, it’s a private and prosecutable act. If he colludes extensively with the Justice Department, ordering them to keep him in office, it is presumptively official. Can this conceivably be the law?
The term “official act” appears nowhere in the Constitution. Besides being arbitrary and ambiguous and of little use to lower courts, the justices’ use of the term misses the boat. A criminal act by the president can never be official. It is an official criminal act by a President that has the most destructive impact on the American people and thus should be punished as a crime. The Court considered a non-official crime, such as giving a false statement in a civil deposition unrelated to the presidency, during the Clinton administration, and the justices said to go ahead with prosecuting it. It won’t bog down the president. Now, private crimes might be justiciable, and public ones are sacrosanct. The issue should never be whether the act is official but, instead, whether the act is criminal. To answer this question, this is why, since 1789, we have always had judges and juries.
After throwing out a see-through fig leaf that the president is not above the law, the Court, in an opinion crafted by Chief Justice John Roberts, created a presumption that the president is above the law for all his official acts. This is gaslighting.
The very court that held that the states could extinguish reproductive rights because neither reproductive rights nor abortion are mentioned in the Constitution stated that the President, even after he leaves office, is absolutely immune from criminal prosecution for “core” conduct within his “conclusive and preclusive constitutional authority,” and presumptively immune from “official acts,” even though the buzzwords “presidential immunity,” “official acts,” “presumption” and “core constitutional authority” are nowhere to be found in the Constitution either. Whatever. On Tuesdays, we’re textualists. On Wednesdays, when the text doesn’t fit our theory—i.e., the student loan case—we’re all about the major questions doctrine. Check with us again on Thursday.
The Framers knew how to grant immunity to public officials if they wanted. The English king had immunity. He could do no wrong, but our country’s founders rejected the divine right of presidents. The concept that the commander-in-chief had immunity would have caused Madison or Hamilton to vomit. The founders knew how to bestow immunity had they wanted to. They gave members of Congress limited immunity for their “Speech and Debate.” At the time, governors in some states had immunity under their constitutions. Of course, the Framers chose not to extend such immunity to the President. But, hey, the originalist history sleuths missed that one. We are too busy looking at the use of muskets in the Founding Era.
The Constitution clarifies that if the president commits a crime, he can be impeached, removed from office, and then prosecuted criminally. This approach has been used for more than two centuries. That’s why Ford’s pardon of Nixon mattered. With immunity, no pardon would have been needed. Until we met Donald Trump, no president in history had been indicted for a federal crime.
The Court decided that all of a president’s official acts, defined without regard to motive or intent, are entitled to an immunity that is at least “presumptive” and quite possibly “absolute.” So, if a president receives a million-dollar bribe in advance to appoint a pal ambassador to Jamaica—or the president orchestrates a coup to overturn a presidential election—he is wielding the enormous power of his office in a corrupt way. Still, the majority says, the criminal law (at least presumptively) cannot touch him.
Even assuming the receipt of a bribe is a private, not an official act, the court held that the prosecution may not even discuss the motive for the bribe (the ambassadorship) or the motive for the coup (to remain in power) unless the government can show that applying criminal prohibitions to that act would pose no danger of intrusion on the authority and functions of the executive branch. Under such an evidentiary standard, any criminal conduct will be an accusation left with inadmissible proof.
Under the majority’s reasoning, as Justice Sonia Sotomayor noted, if the president orders Seal Team 6 to assassinate a political rival? Immune. If he orders the military to hold him in power irrespective of the outcome of an election? Immune. Takes a bribe in exchange for a pardon? More immune than the immunity conferred by the COVID-19 vaccine.
And why immune? The Court worries that if the rule were otherwise, some hypothetical future president if he knew that he may one day face liability for breaking the law, might not be as bold and fearless as the radical conservative majority would like him to be. Pure rubbish!
Having given Trump de facto immunity by staying a criminal trial and taking its sweet time to decide the case (the decision came down on the last day of the term six months after its initial submission), the court remanded the matter to Judge Tanya S. Chutkan in the District of Columbia.
Perhaps sometime before the election, Chutkan will hold a threshold hearing to give the government a chance to lay before the public the stark facts of Trump’s criminal conduct so at least the voters will be fully informed to that extent.
The court’s decision will probably have no legal consequences beyond Donald Trump. In our 230-year history, it has never happened that a president authorized an attack on our democracy, a launch of a “Big Lie” that he had won an election that he knew he lost, a plan to pressure the vice president and state officials to decertify the results of a fair and free election. Like the Immaculate Conception, it never happened before and is unlikely to happen again.
But Trump did it and got away with it. The court handed him a historic legal victory. The Court rewound the clock to the reign of George III. The danger to the republic is not a president pulling his punches out of fear of eventual criminal prosecution but a president spurred to commit serious crimes because he is confident he will never be prosecuted.
The verdict on Trump’s criminal behavior must now be rendered in the court of public opinion. The verdict on the Roberts Court is already in.
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