Trump vs. United States

The Supreme Court recently reached a decision in the aptly-named case of Trump v. United States. The 6 Republican judges announced that in the contest between Trump and the United States, they side with Trump.

1. What the Court Found

Background: Trump is being prosecuted for trying to steal the 2020 election. The allegations include:

• He tried to convince election officials to falsify the vote count in some states. In one case, he threatened to criminally prosecute an official if the official didn’t “find” some more votes for Trump.

• He organized groups of fake electors to produce fraudulent election certificates representing that he’d won the electoral votes of several states that he in fact lost.

• He had those fake election certificates sent to Washington, where he tried to convince Mike Pence to count the fake votes or at least pretend not to know which were the real votes.

• He told the Attorney General to pretend that there was election fraud in states that Trump lost, to conduct sham investigations and try to pressure states into changing their votes.

• On Jan. 6, 2021, he incited a riot at the Capitol in an effort to intimidate Mike Pence and others to go along with his plan to steal the election.

Trump’s defense: That as President, he should have immunity from prosecution for all of these things.

Note: The legal issue is not whether those allegations are true. The issue is whether if they are true, Trump could be punished.

SCOTUS says:

• (i) The President has absolute immunity from either prosecution or lawsuits for any official acts that exercise core powers of the Presidency.

• (ii) He has at least a presumption of immunity for all other official acts.

• (iii) He does not have immunity for actions he takes as an ordinary individual (non-official acts), even while he is the President.

• (iv) In prosecuting the President for unofficial acts that may be criminal, courts may not even take into account any of his official acts, e.g., as evidence about his state of mind or intentions. (Justice Barrett disagreed with this most absurd part of the decision.)

2. Arguments for Immunity

2.1. The Stupidest Argument for Immunity

Argument: The President needs to be able to take bold, decisive action. To do this, he must be guaranteed complete immunity from any kind of personal consequences for his actions. If he has to worry about being sued or prosecuted, then he might not do what is best for the country, because he would be influenced by self-interest.

What is stupid about this argument?

1. Before this ruling, everyone assumed that Presidents could be criminally liable (that’s why, e.g., Ford had to pardon Nixon). There is no evidence that there has been any problem of Presidents being overly timid about exercising their powers as a result. All the evidence in the history of humanity has been on the other side: that leaders are too aggressive and prone to abusing their powers.

2. There also hasn’t been a problem with government officials being overly eager to prosecute other government officials. Again, the exact opposite is the case: government officials, especially Presidents, constantly get away with all sorts of crimes.

3. The court was worried about a scenario where (a) the President needs to commit a crime in order to best serve the interests of the country, but out of self-interest, he doesn’t do it because he’s afraid of being prosecuted. What never occurs to them is the scenario where (b) the President wants to commit a crime to serve his own interests at the expense of the country.

Now, if the President is thinking about committing a crime, which of those scenarios is more likely? Which do you think is the greater problem?

The fact that scenario (b) never enters into the majority’s deliberations could be chalked up to a naive optimism about human nature — if this were an opinion written by 5-year-olds, and if the case before them right then didn’t directly, explicitly involve scenario (b). If we were talking about assassinating terrorists, then you could maybe say “the Framers intended the President to take bold, decisive actions like this to protect America.” But it’s a little harder to argue that the Framers intended the President to be able to take “bold” actions like faking election results and starting riots in order to stop his successor from taking office. It really is hard to think of anything that would be more obviously contrary to the entire point of the Constitution and of democracy.

Granted, the USSC did not say that Trump is immune from prosecution for all of those actions. Rather, they refused to say whether he was; they sent the case back to the lower courts to figure out which of Trump’s actions were “official acts” and which exercised “core powers” of the Presidency. What is incredible is that they left open the possibility that Trump is immune for all of those things. They did make clear, though, that ordering the Attorney General to conduct sham investigations to try to intimidate election officials is fine.

4. It is simply absurd on its face to claim that, in order to faithfully discharge your duties, you have to be allowed to commit any crime whatsoever, as long as you use the powers of your position to do it. No one else has any such immunity, and the rest of us do our jobs just fine. Indeed, such immunity would obviously make it much less likely that people would faithfully discharge their duties. If we were talking about any non-government position, no one would have the slightest trouble seeing this.

   1. Example: Suppose I claim that doctors need to be able to boldly act in the best interests of their patients, and they can’t do this if they have to worry about being sued or prosecuted for how they treat patients. Therefore, surgeons should have complete immunity. E.g., if a surgeon deliberately kills a patient during surgery because he wants to steal the patient’s wife, that should be completely immune from prosecution. Only in this way can doctors be free to do what’s best for patients.

      I hope you’d agree that that is ridiculous on its face.

2.2. A Less Stupid Argument

The majority worried that if Presidents could be prosecuted, then we might see a string of politically motivated prosecutions, where each President prosecutes his predecessors in the other party, then has to worry about being prosecuted in turn when he leaves office.

This would indeed be bad, but this fear seems groundless. We’ve been under this Constitution for over 200 years, and we’ve never once before had any former President prosecuted, despite that many of them have committed well-known, serious crimes, and despite that no one before now thought that Presidents had immunity. So the tendency is obviously to give too much deference to former Presidents, rather than to frivolously prosecute them at the drop of a hat.

If the majority was really concerned about this (and not just pretending to be concerned so that they’d have an excuse to rule in favor of Trump), they could have tried crafting some more limited immunity that wouldn’t protect blatant corruption.

2.3. The Non-Stupid Argument for Immunity

The Constitution deliberately separates the powers of the three branches of government. The President is given certain exclusive powers, such as that of pardoning people or hiring or firing executive branch officials.

But if the President could be criminally prosecuted for the way that he exercises these powers, then the Congress could in effect nullify the separation of powers. They could just pass a law requiring the President to exercise (or not exercise) these powers in a particular way. Then these powers would effectively be under the control of Congress, rather than the President. This can’t be what the framers of the Constitution intended.

I think this argument supports having judicial review of the constitutionality of applying particular laws to the President. I.e., if a President is prosecuted, he should be able to raise in court the defense that the law, as applied to his particular case, would restrict his powers more than the Framers intended. This defense should involve arguing that there was at least some rational basis for thinking that the President needed to do this thing to properly carry out his Constitutional duties.

The problem with the majority’s immunity doctrine is that it allows the President to get away with any crime, for any purpose, as long as he uses the powers of his office to commit the crime. The President’s action need not be in any way connected to the legitimate purposes of the office; it can be nakedly self-interested or corrupt, as far as the majority is concerned. They deny that the courts may even consider the President’s motives.

3. Arguments Against Immunity

3.1. The President should not be above the law

As Sotomayor put it in her scathing dissent, “It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.”

Clarence Thomas’ reply:

“[T]here has been much discussion about ensuring that a President ‘is not above the law.’ But, as the Court explains, the President’s immunity from prosecution for his official acts is the law.”

See, immunity is the law, as of now, so what’s your problem?

I refuse to believe Clarence Thomas is that stupid. He can’t think that the idea of “the rule of law” is satisfied as long as you have a law that says that your dictator is exempt from all the other laws. That isn’t what anyone has ever meant by “rule of law”.

Okay, Roberts’ reply, in paraphrase: Don’t worry, we’re not placing the President completely above the law. He can still be prosecuted for unofficial acts. Plus, we leave open that you might even be able to prosecute him for some official acts that are outside of his “core powers”.

Sotomayor’s (correct) reply: This is small comfort, since the majority took an extremely expansive view of “official acts” such that they include all conduct “not manifestly or palpably beyond [the President’s] authority”. And even for the tiny range of unofficial acts, you can’t use any of the President’s official acts as any part of the evidence in the prosecution. This really lets Presidents get away with almost any crimes they would want to commit.

3.2. Historical evidence

In the main dissent, Sotomayor lists evidence that people around and after the time of the founding, including Alexander Hamilton in the Federalist, thought that Presidents would be liable to criminal prosecution.

Roberts’ reply: But these sources didn’t explicitly specify that they had in mind official acts.

Sotomayor: The Constitution explicitly mentions the possibility of impeaching (and later prosecuting) the President for “treason, bribery, or other high crimes and misdemeanors”. Bribery almost by definition involves official acts — e.g., say the President takes a bribe to veto a bill. That inherently involves using the powers of his office.

By the way, even Trump’s own lawyers, when he was being impeached, agreed that the President was criminally liable. That was part of their argument against conviction in the Senate, namely, that if people thought the President was guilty of crimes, that should be adjudicated in a criminal trial.

3.3. Reductios ad absurdum

1. As Justice Jackson mentioned in court, the majority’s immunity ruling implies that the President could order Seal Team 6 to assassinate his political opponent, and he would be completely immune from any consequences.

2. Or he could orchestrate a military coup to retain power after being voted out.

3. He could sell pardons, or take bribes for other official acts.

4. He could order the Attorney General to prosecute anyone who criticizes him on trumped up charges (pun intended), and to fabricate evidence against those people.

As far as I can tell, #1, 2, and 4 would all count as “official acts” exercising “core powers” of the Presidency. In the case of #3, the actual acceptance of the bribes would be unofficial; however, any prosecutor would be prohibited from talking about the official acts that the President took bribes for, so it’s hard to see how a prosecution could proceed. In the case of #4, as incredible as it sounds, the majority actually said that any communications between the President and the Attorney General were protected.

It’s not like the majority didn’t think of these things; the minority explicitly brought these things up, but the majority just ignored them. One is left to conclude that they think these consequences sound fine.

Maybe you think an American President would never do such things. But the case we’re looking at is about the President using his powers to try to overturn the election and remain in power. If the standard that you use for judging that case is one that would imply that it would have been fine for the President to do all the things listed above, then do you think maybe your standard is too permissive?

According to the SCOTUS, Joe Biden could right now order the military to assassinate Trump and all the Republican members of the Supreme Court. Of course, once Biden replaced them with liberal justices, the Court would probably reverse its position and allow Biden to be prosecuted.

The majority talked about how this Presidential immunity doctrine was needed to preserve the separation of powers as well as to preserve “liberty”. Congratulations: you’ve now achieved a level of doublespeak comparable to the Woke DEI ideologues. If giving the President the power to assassinate his opponents, etc., counts as “protecting liberty”, then we really are living in the world of 1984. It is hard to think of anything less democratic or more obviously incompatible with everything the Constitution ever stood for.