The Roberts Court’s Presidential Immunity Ruling Has Lost Nearly Everyone Except for the Far Right

Commentators across the ideological spectrum are puzzled to dismayed at the majority’s indifference to executive accountability

The UnPopulist illustration.

Monday’s Supreme Court ruling in Trump v. United States handed a president vast legal immunity from prosecution for his conduct while in office. The 6-3 decision, divided along ideological lines, was “something of a Rorschach test for the justices,” according to the New York Times’ Alan Feuer, “revealing what they saw as the largest looming threat to American democracy.”

For the conservatives, that threat is the prospect of ceaseless cycles of partisan prosecutions constraining a president’s ability to make decisions in the best interests of the country. … The liberals, by contrast, feared a monarchical president who could use the immense powers of the office for personal or political gain or for other illegitimate purposes without the legal checks and balances that they say have long been necessary to ensure accountability.

Chief Justice John Roberts, writing for the majority, argued the threat of possible criminal prosecutions would hamper the “vigor” and “energy” of the executive. Justice Sonia Sotomayor, in her dissent, said that the decision “reshapes” the presidency and “makes a mockery of the principle that no man is above the law.” If Justice Sotomayor is exaggerating, it’s not by a lot.

As Harvard University’s Jack Goldsmith explained in an admirably dispassionate analysis at Lawfare, the ruling has three moving parts:

First, a president receives no immunity for criminal prosecution for unofficial acts. Second, a president receives absolute immunity from criminal prosecution that would violate the president’s official conduct in exercising an exclusive presidential power, such as issuing a pardon or firing a subordinate. Third, a president receives “presumptive immunity” for other official acts, broadly construed, that can be overcome if the prosecutor shows that prosecution for the act would pose no “dangers of intrusion on the authority and functions of the Executive Branch.”

The first two rulings are not controversial. But the third—a variation of what the special counsel proposed, but one much more protective of the presidency—is quite controversial, and is a large victory for presidential power at the expense of presidential accountability, even though the Court left much for the lower courts to decide in the first instance.

In other words, the Court’s decision is a major blow for the notion that the executive exists and operates within, and is subject to, a system of laws.

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Stopping a Rogue Executive from Abusing the Massive Powers of the Presidency

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But here’s the silver lining: Reactions to the ruling across the ideological spectrum have been largely negative. Only the far right seems to relish the prospects of an imperial presidency fully untethered from the inconvenient shackles of democratic accountability.

Progressive Writers Pan Roberts

Progressive, anti-right thinkers have of course panned the ruling.

For example, Georgetown Political Science Professor Don Moynihan warned: “This is the ball game, folks—the authoritarian green light.” Since impeachment has been rendered toothless by its partisan capture, Moynihan notes, the Supreme Court’s decision now endows Trump “with extraordinary latitude to do whatever he wants in power.” If Trump is reelected, he “will not be constrained by Congress, the courts, the bureaucracy, or law.” Furthermore, notes Moynihan, “Trump, who tried to overthrow an election, campaigned persistently for his fellow party members to grant him absolute immunity for his misdeeds in office. And they did.”

Likewise, The Atlantic’s Adam Serwer notes that the Court’s opinion will not only offer cover for Trump’s actions following the 2020 election, it’ll also hand “a permission slip for the despotic power that Trump has vowed to assert if he is reelected. It is not just a grant of immunity for past crimes, but an enthusiastic endorsement of the ones he will commit if given the chance.”

Jay Willis, editor in chief of Balls & Strikes, fumed that the ruling represented:

A full-throated endorsement of the absolute power Trump craves, rendered in anodyne legalese and sprinkled with mealy-mouthed appeals to the importance of our great nation’s tripartite system of governance. It creates a brand-new version of the presidency in which a reelected President Trump could spend four years doing—and here I apologize for the legal jargon—whatever the fuck he wants.

Conservative Commentators Are Shocked

Center-right writers such as David French, a principled opponent of Trump and the MAGA right from the start, weren’t quite so colorful—but they too were deeply concerned. French lamented that the immediate impact of the ruling would be that special counsel Jack Smith’s case against Trump’s efforts to overturn the election would now be remanded to lower courts for additional proceedings to determine whether Trump could be prosecuted. That could likely delay any resolution of the case beyond November when, if Trump is reelected, he’ll just pardon himself and shut the lawsuit down.

But, of course, the ruling will have repercussions far beyond Trump. French seconded Justice Sotomayor’s concern that the ruling would “potentially protect presidents from prosecution for bribes and assassinations” (even of political opponents) because the Supreme Court had “granted a dangerous amount of discretion to presidents” and a “broad zone of absolute immunity.”

In the same vein, Kim Wehle, Professor of Law at the University of Baltimore and former Assistant U.S. Attorney, wrote at The Bulwark that the Supreme Court’s decision leaves the American people having to “rely on the delusional belief that future presidents will choose to act in good faith with their own conscience as a guide rather than abuse the virtually unlimited power the radical majority just gave them.”

Even Andrew McCarthy, the legal analyst at the arch-conservative National Review, expressed surprise that the Court did not accept the concessions that Trump’s own legal counsel John Sauer, under pointed questioning by none other than Justice Amy Coney Barrett, made regarding allegations that the so-called fake-electors scheme would be considered a private act and would therefore not enjoy immunity. “I don’t recall an occasion when a lawyer in a big case made a major concession to his client’s apparent detriment—which he’d obviously deliberated over prior to making and decided his credibility as an advocate required it—and yet an appellate court second-guessed the lawyer.” That, however, notes McCarthy, is exactly what the majority did:

Roberts proceeds to point out—not very convincingly, in my view—that certain aspects of the scheme intersected, at least at the margins, with then-president Trump’s arguably official responsibilities. Roberts refers to Trump’s communications with state officials (which were, at best, tenuous in connection with the electors scheme); and a precedent (which he really does not discuss in any detail) related to President Ulysses S. Grant’s intervention on behalf of Rutherford B. Hayes in the historically controversial 1876 election. In the main, Roberts implies that the premise of Sauer’s concession—namely, that “campaign conduct” is not “official conduct”—is at least overbroad.

As a result, the fake-electors scheme joins all of the other allegations in the indictment that are, or at least could be, presumptively immune from prosecution. (Emphasis added.)

To be sure, this isn’t a vehement condemnation of the ruling. But, still, it’s saying something that the Roberts Court couldn’t muster a heartier endorsement from a publication that considers itself the organ of conservatism.

Classical Liberals Are Enraged

Meanwhile, The UnPopulist’s classical liberal-minded contributors who have no partisan axe to grind and wouldn’t automatically diss a conservative court, are, like progressives, furious at Roberts.

Andy Craig, in this exclusive essay for The UnPopulist, argues that the Court has gone so far as to neuter itself in holding a rogue president accountable to the rule of law:

It was a shocking ruling, even for those who expected the Court to effectively tank the prosecutions against Trump. In her dissent, itself remarkable in its departure from the Court’s decorous norms, Justice Sotomayor all but accused the majority of betraying the Constitution and the American Revolution, in addition to offering up a dog’s breakfast of incomprehensible vagueness and contradictions. President Biden’s brief speech in response also sounded the alarm that the Court’s ruling had made the presidency, in effect, an absolute dictatorship, its powers now checked only by self-restraint.

In their own ways, the dissents from the liberal justices and especially Biden’s speech were their own departures from constitutional norms. But such is the nature of a constitutional crisis. Even in strident disagreement, justices have rarely accused each other of betraying the fundamental principles of the American nation. And in any other context, it would be shocking for a sitting president to comment at all on a case that is still, technically, an ongoing criminal prosecution by the Department of Justice.

In the meandering majority opinion written by Roberts, the Court has decreed an effectively complete presidential power to commit crimes with impunity. Even the Court’s own supposed power to strike down presidential actions is rendered a nullity. The judiciary, no less than acts of Congress, ultimately relies on the coercive power of the law. In the last resort, that means criminal law. And by divorcing the prosecution of Trump from its actual context—an attempted coup, a violent attack on Congress, a plot to steal the presidency itself—the Court pretends other checks on presidential power remain. He can still lose an election, he can still be impeached. But this means nothing when election results can be overturned by force and fraud, and when a president can (as this president did) physically disrupt Congress from even meeting and conducting business.

The Framers of the Constitution disagreed on many things. On some matters, it can be difficult to parse their intent on questions they never squarely addressed and might not have even considered. But this is not one such area of ambiguity. If the Revolutionary generation agreed on anything, it was rejection of a king who is above the law. They spoke often of creating a presidency that was under the law, an office whose holder enjoyed no sovereign immunity because in America, the people are sovereign, not the head of state. The Constitution even explicitly contemplates that an impeached president could go on to face criminal prosecution for the same acts which merited his removal. Presidents throughout the history of the republic, including Richard Nixon and Gerald Ford in pardoning him, never disputed that a former president was subject to potential prosecution for crimes committed in office.

Against all the legal principles to the contrary, the Court instead engaged in a kind of freewheeling policy making based on its own subjective wishes about what the Constitution should say rather than what it does. Ostensibly, this is grounded in the structural implications of the Constitution, the separation of powers under which some powers are accorded to the president and so cannot be criminalized. It is generally undisputed, for example, that Congress could not pass a law making it a crime to veto a proposed law.

But in their sweeping notion of “official acts,” the justices have erased any distinction between lawful and unlawful exercises of presidential power. Roberts gives a perfunctory nod in this direction with a distinction between “core” powers exclusively granted by the Constitution to the president, which enjoy absolute immunity, and all other exercises of presidential power, which get “presumptive” immunity. Or maybe that immunity’s absolute, too. The Court declined to say. But in practice, this putative presumption of immunity is indefeasible, wrapped in such vague but strongly worded protections that no prosecutor could ever realistically overcome it.

In placing presidents above the law, the Court professes to be protecting the presidency from an overreaching Congress or politically motivated successors in the executive branch itself (which, after all, brought the current case against Trump). But perhaps unwittingly, the Court has just as much eviscerated its own power over the occupant of the White House. Courts no less than the other two branches ultimately rely on the coercive power of the law to enforce their rulings. In the last resort, that means criminal penalties for outright defiance.

If Trump returns to the Oval Office (looking increasingly likely as Biden’s campaign implodes), the justices may live to see the day when they are hoisted on their own petard. Trump and his acolytes have already made plain that they see this ruling as a blank check for their desired dictatorship. If and when the judiciary rules against them, what then? Between the president’s newly created inviolability and the existing unchecked, unreviewable power to pardon those following his orders, nothing except norms and self-restraint stand in the way of defying the highest Court in the land. Does anybody think Trump, of all people, will simply acquiesce to unfavorable rulings? Who’s going to enforce them? You and what army, Mr. Chief Justice? Will Congress impeach and convict? The same Congress that, in this very case, was chased out of the Capitol by a deadly mob incited by the president? Will the voters reject the president at the next election? The same electoral process this very president attempted to nullify by force and fraud?

L’etat c’est moi is now the effective reality endorsed by the Court. It is a theory wholly alien not just to American principles, but to the Anglo-American tradition more broadly. No head of state in the English-speaking world has made such a claim to unchecked, absolute autocratic power since Charles I, who for that theory met his fate at the end of an ax. Even the British monarchs who still enjoy nominal immunity—that “the king can do no wrong”—have for centuries faced the reality that they can be deposed at will by the elected legislature and thereafter be subjected to punishment.

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Trump Is Running for Dictator

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Tell us what you really think, Andy!

Meanwhile, Walter Olson on his blog at the Cato Institute agreed with the dissent penned by the liberal justices who accused the majority with concocting an “atextual, ahistorical, and unjustifiable” array of immunities that will too often place above the law a president bent on criminal misuse of his powers of office. This is not only at odds with the rule of law and the Constitution but also, noted Olson, with the intent of the Founders:

Nowhere in the Constitution is there mention of executive immunity, which was a topic of peculiar interest to the Founders and Framers. Alexander Hamilton wrote in Federalist 69 that unlike the “king of Great Britain,” the chief executive of the United States would “be liable to prosecution and punishment in the ordinary course of law,” and in Federalist 77 named “subsequent prosecution in the common course of law,” in addition to impeachment, as checks on “abuse of the executive authority.”

It was a foregone conclusion that past judicial precedent (especially in Nixon vs. Fitzgerald) and practice of both Republican and Democratic administrations would mean that the Supreme Court now would hand some amount of immunity for the president, Olson concedes. But this ruling not only affirmed existing immunity from civil prosecution for official conduct that Nixon (erroneously) granted to a president but also extended it to criminal prosecution for all kinds of conduct. “[A]t one key decision point after another,” notes Olson, the Roberts Court “seized on any half-plausible ground (and some perhaps less than half-plausible) to expand both the formal and the practical scope of immunity.”

He offers an incomplete list:

• For a range of actions exercising core executive authority, including conversations with subordinates such as the attorney general, pardons, and appointments, immunity is absolute, even if actions were taken for a corrupt purpose or as part of a conspiracy otherwise criminal.

• Exercise of less-than-core executive authority is still immune, the majority writes, “unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’” The use of “no” rather than, say, “no more than minimal,” means that lawyers for a criminal ex-president need only establish a scintilla of danger of intrusion on executive function to defeat a prosecution over the gravest misuse of official power. If the Court was making up this standard as it went along, why not make up a standard friendlier to public liberty?

• Unofficial actions by a president, all agreed, are not immune. But how to define them? “In dividing official from unofficial conduct, courts may not inquire into the president’s motives,” the Court declared. And yet motive and intent often make the difference in whether a course of action constitutes a crime—most especially by establishing the prerequisite of a guilty mind (mens rea). And motive and intent go to the core of whether a chief executive acted with presidential duties in mind, or in pursuit of, say, his interests as a candidate. It’s an arbitrary limitation that will derail otherwise well-grounded prosecutions.

• The Court then offers guidance on how to distinguish official from nonofficial conduct—but keeps suggesting that almost every kind of misconduct alleged of Donald Trump might count as an official action. Was it unofficial for Trump to lean on a Georgia official to “find” votes for him? Well, presidents in the course of their duties naturally speak to many government officials, so maybe yes, the majority seems to think. Was it unofficial for Trump to harangue a crowd shortly before violence broke out at the Capitol—a speech taken in his interests as a candidate, not as a chief executive? Well, presidents in the course of their duties give speeches all the time, so again, maybe yes. By this standard, what isn’t an official act?

• Even if a prosecution somehow clears these hurdles, more hurdles lie ahead. The majority decreed that evidence relating to immune acts must not be allowed into evidence even if highly probative as to the commission of other crimes for which there is no immunity. (Justice Amy Coney Barrett declined to join this part of the opinion.) For good measure, the exclusion of communications with a president’s subordinates will often forestall the best way of establishing what happened.

“Singly, these are instances of doubtful solicitude toward the Executive,” Olson notes. “Together, they combine into something more and worse. This is not what the Framers wanted. It is not what we should want either.”

And, last but not the least, The UnPopulist’s contributor, Ilya Somin, on The Volokh Conspiracy blog, takes the majority to task for forgetting its own originalist commitments and making a consequentialist policy argument to justify handing the president extensive immunity, namely that without such immunity he would be deterred from carrying out his duties with “bold and unhesitating action.” “They fail to explain why this consideration should outweigh the danger that sweeping immunity would incentivize presidents to commit horrific crimes and abuses of power—such as, for example, trying to use force and fraud to stay in power after losing a presidential election,” he charges. Moreover, had the conservative majority stayed true to these commitments, he maintains, it would have seen from Justice Sotomayor’s intensive interrogation of the historical record that the Framers rebuffed many opportunities to hand a president precisely the kind of immunity that the Court just did. He notes, wryly, “The liberal living-constitutionalist dissenting justices pay much more attention to originalist considerations here than the conservative originalist majority.”

The Supreme Court had a major opportunity not only to hold Trump accountable to the rule of law but set down limits on the awesome powers of the executive, a cause that conservatives have long championed. It fell on the job and the country may well suffer the consequences.

© The UnPopulist, 2024