Panico.
I promised you all a post on the immunity decision, and even though I had to write this after I watched the U.S. Men’s soccer team lose against Uruguay, I am giving you a Jackal. Let’s dive into the Supreme Court’s horrible, horrible decision on immunity.
I want to get two things out of the way before we get into this Jackal:
I wrote about the immunity case previously and gave my predictions. My predictions were wrong. We got as close to the worst possible outcome on the immunity decision that you could get.
For obvious reasons, this is a dark Jackal.
If you want a preview of how dark, it is starting to sound like this guy was right:
We are so back.
So, POTUS is a king?
Let’s breakdown what SCOTUS actually said about the President, and then we can sort out how that applies to former President Donald Trump.
SCOTUS says that the president of the United States does have immunity for certain acts.
The president has absolute immunity (i.e., no prosecution can ever be brought) for official, core presidential acts.
This includes things like pardons, acts as commander-in-chief, and any direction given to agencies within the Executive Branch, like the Department of Justice.
The president has presumptive immunity for any official acts outside of the aforementioned core.
A prosecutor can only surmount the presumptive immunity bar by demonstrating that prosecuting the president would not intrude on the Executive Branch’s functioning.
The president has no immunity for non-official acts.
SCOTUS says that the president’s conduct in office cannot be used as evidence if it was done as an official act. For example: While President Trump’s conversations with his acting attorney general, Jeffrey Clark, may be strong evidence that Trump was plotting to stay in office, they cannot be used as evidence in a trial, because conversations between the president and his attorney general are protected by the immunity carve-out.
It is sort of hard to put someone on trial if you are not allowed to use any evidence against them.
If you want a visual aid of what this means:
Just kidding, here is an actual visual aid:
What the heck does any of that mean?
Before I get into any detail, I should say that no one really expected the decision to come down this way. Legal reporters can be hyperbolic, especially if they work for partisan websites. When that filters down into the regular folks, it can cause a (in this case, Left-wing) freakout.
Those are generally not the people I listen to and it is definitely not me. But every smart legal analyst I follow sees this for what it is: A huge and alarming of expansion Executive power, and one that would be unnerving in the hands of a president like Donald Trump. Heck, it is unnerving even in the hands of Grandpa Joe Biden.
It is helpful to break down what this means by citing to Trump’s case, since it was (literally) what was before SCOTUS and it offers us our only real example, since he is the only former president to be prosecuted.
Some of the President’s former charges are going away, namely the ones related to Jeffrey Clark (I would guess that Clark’s own charges will now likely be dismissed). Other charges now have to go back before the District Court judge to determine if those charges are related to official or unofficial acts. In other words, SCOTUS has 1000% killed any chance of the January 6th trial from happening before the election. Before, it was conceivable that the trial would re-start in August, with it going to jury deliberations some time around the week of the November election. Now it will not happen until after the election, if it even happens at all.
It is a huge, huge victory for Trump, and it is impossible to feel like SCOTUS did not engineer it specifically to help him. I mean, to summarize it: All of the bad stuff Trump did now has to be determined to be “official” or “non-official,” which will take months to resolve. When that is over, it is totally possible that there will be nothing left to prosecute.
Is it really that bad?
It’s that bad. This isn’t just a bad decision for Trump’s case (if you’ve been reading the Jackal, I have been skeptical that it would make it to hearing for a few months now); it’s a bad decision for America. I think it is an expansion of Executive power that should alarm every conservative, in addition to every liberal.
I want to give a clear example of what could actually happen according to SCOTUS: Donald Trump could, in private at the White House, have a conversation with his attorney general about indicting Jeff Bezos and threatening him unless he gives Trump 20 billion dollars. That indictment could happen and Trump could never be prosecuted for it, because all of Trump’s communications about it happened with his attorney general. In short, Trump directing a criminal indictment of an opponent would be a “core” official act for which he would have absolute immunity.
Here is Justice Sonia Sotomayor trying to lay this out in the dissent:
Looking beyond the fate of this particular prosecution, the long-term consequences of today’s decision are stark. The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. This new official-acts immunity now “lies about like a loaded weapon” for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation.
She makes mincemeat of Roberts on almost every page. In this section, Sotomayor quotes from Justice Robert Jackson’s dissent in Korematsu v. United States, the SCOTUS decision that said President Franklin D. Roosevelt’s internment of Japanese-Americans during World War II was constitutional (ironically, the Roberts Court was the first to officially repudiate that decision). That should give you an idea of how bad she thinks the decision will be for the country. She continues:
The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune. Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today. Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.
In Roberts’s defense, he does have a rebuttal to Sotomayor’s points:
Nah uh!
I am only half-way kidding: Roberts simply says that SCOTUS is not giving the president any extra powers because, “No one is above the law,” and then he says the dissenting opinions are exaggerating. That’s the entirety of his rebuttal. Seriously.
Roberts just claims his decision is right, but he doesn’t say how. Moreover, he never actually explains how the president’s different tiers of immunity are ever outlined in the Constitution. There is a principle in law called, “Elephants don’t hide in mouse holes.” Basically, if the Constitution is laying the groundwork for such an incredibly important idea, you wouldn’t have to look around for it very hard. There is no support for Roberts’s theories in the Constitution, and there is even less for it when you look at documents from our founding.
A Founding Father that often gets overlooked is James Wilson, who basically created the Electoral College. Wilson explicitly said that the president should enjoy “no privileges not enjoyed by all other citizens.” Wilson envisioned - along with James Madison and John Adams - a president who would come from the people and then return from the people, and that consequences of acts taken in office would attract only honorable people to the Presidency.
The Supreme Court has fully turned that notion on its head; they have made it more likely that someone with bad motives - say, for instance, getting out of criminal indictments in D.C., Georgia, and New York - would run for president.
In her dissent, Justice Ketanji Brown-Jackson makes the point that for all of the majority’s attempts to lay out a tiered system of immunity, nobody can tell what the hell they’re saying:
The majority’s multilayered, multifaceted threshold parsing of the character of a President’s criminal conduct differs from the individual accountability model in several crucial respects. For one thing, it makes it next to impossible to know ex ante when and under what circumstances President will be subject to accountability for his criminal acts. For every allegation, courts must run this gauntlet first—no matter how well documented or heinous the criminal act might be. Thus, even a hypothetical President who admits to having ordered the assassinations of his political rivals or critics, see, e.g., Tr. of Oral Arg. 9, or one who indisputably instigates an unsuccessful coup, id., at 41–43, has a fair shot at getting immunity under the majority’s new Presidential accountability model. That is because whether a President’s conduct will subject him to criminal liability turns on the court’s evaluation of a variety of factors related to the character of that particular act—specifically, those characteristics that imbue an act with the status of “official” or “unofficial” conduct (minus motive). In the end, then, under the majority’s new paradigm, whether the President will be exempt from legal liability for murder, assault, theft, fraud, or any other reprehensible and outlawed criminal act will turn on whether he committed that act in his official capacity, such that the answer to the immunity question will always and inevitably be: It depends.
During oral argument, Justice Neil Gorsuch said that the Court was writing an argument not for Trump but “for the ages.” Super cool that this supposedly timeless opinion sounds like it was written by a one-eyed squirrel high on crystal meth.
Make no mistake: This is a dark moment. A second Donald Trump term is a very real possibility next year, and if you do not think he will use these new powers to prosecute people he doesn’t like (or even drone them!), you do not know him.1
I just want to lay out a scenario for a TV show I’ve got kicking around in my head:
In Season 1, there is a presidential race between a sketchy TV show host and the former Secretary of State, Chillary Flinton. The TV show host - Mr. Tiny Brain - pulls from behind to win the election.
In the middle of the season, it’s revealed that a hostile foreign government wanted to stop Secretary Flinton from winning, and illegally helped Mr. Tiny Brain by interfering in the election.
To the surprise of many people, Mr. Tiny Brain’s campaign knew about the foreign interference, and readily accepted their help. An investigation is done, but Mr. Tiny Brain uses the power of the presidency to obstruct the investigation and protect himself from consequence. Although his assistants that knew about the foreign influence were indicted, he later pardons them as a reward for their silence.
In Season 2, he runs for his second term and tries to bribe a different foreign country into interfering again, but gets caught. He’s impeached, but his Party supports him.
He is ultimately able to remake the nation’s highest court and appoints three judges.
Despite this, he loses reelection, but attempts to do a self-coup to stay in office. He challenges election results, and when that doesn’t work, he stirs up a mob that was threatening to kill his second-in-command. They storm Congress, but ultimately Mr. Tiny Brain is pushed out of office.
Faced with legal challenges for his conduct, he decides to run again to enjoy the privileges that got him out of his illegal coordination with an enemy.
He ultimately brings those legal challenges and puts them in front of the judges he appointed.
They not only delay the prosecutions he’s facing, but carve out special privileges for him.
He continues to run for office, promising to punish who turned against him.
This is sort of where I’m stuck. What do you think I should make happen in Season 3? I am thinking we really subvert the audience’s expectations and make him into a good guy.
Or, we could go with the historical model and make him Adolf Hitler. Can’t decide!
In all seriousness, if you were drawing up how America would end, what is happening now would be in your drafts folder. The stakes for November just got infinitely higher.
Should-reads:
I meant to link to this piece on Chevron last week and gave you guys the wrong one. My bad, and thanks to a helpful reader for pointing it out.
Adam Serwer is excellent here on immunity.
Jay Caspian Kang begins a climb up a mountain and makes the case for Joe Biden staying in the race.
This is a good podcast to listen to on immunity (recorded before the decision came down).
Folks, I am gone until July 12th. Do your best to enjoy the Fourth of July, but if it is a little somber, I wouldn’t blame you.
I am sure some people will say, “Well, he didn’t do that in his first term!” But he tried. He just happened to surround himself with a bunch of semi-normal Republicans, but he won’t make that mistake twice.