The media and fund raising emailers are having a ball screaming “the sky is falling! The Trump Supreme Court has given Trump ‘absolute immunity’ for whatever he wants to do as President. He’ll kill us all!”
But that’s far from true.
The United States v Trump
The case is known as US v Trump. In its opinion, the Supreme Court didn’t give Trump anything. In fact, the Court remanded the case to the District Court, and told the lawyers for both sides to start all over again. This time, they have to consider three important points. Before explaining these, lets see how the case got to the High Court.
As you probably know, Trump was indicted by a Federal Grand Jury for several criminal charges alleging a conspiracy to change the outcome of the 2020 presidential election. (SCt's Opinion, page 2. All references to the Opinion.)
In the District Court, Trump’s lawyers moved to dismiss the indictment based on Presidential immunity. (3)
The District Court denied the motion to dismiss, holding that “former Presidents do not possess absolute federal criminal immunity for any acts committed while in office.” (3-4)
The Circuit Court of Appeals affirmed the District Court’s ruling that the Courts can try a former president for his alleged crimes committed while in office.
The Court of Appeals relied, in part, on the 1803 case of Marbury v. Madison (4f) – that’s the most important case in the history of the Supreme Court. It’s the case that said the Supreme Court has the power of Judicial Review; that is, the power to say if a government law or action is constitutional or unconstitutional.
One of the things Chief Justice John Marshal wrote in Marbury is that there are two kinds of official government acts that the Executive Branch can engage in: discretionary and ministerial. He said the courts cannot question the Executive’s “discretionary acts,” because the Constitution gives the Presidency special roles and duties which require its discretion to carry out. This is a part of the Constitution’s “Separation of Powers.”
However, the courts can examine “ministerial acts,” because these are a matter of doing what the law says they should do.
So, the 1803 Marbury opinion says that there are times when the Executive’s acts cannot be examined by the courts, and times when the president’s acts can be examined by the courts. In other words, if a president is charged with acting outside the law while undertaking his or her official “ministerial” duties, then the courts have the authority to try those allegations. This authority is part of the Constitution’s “checks and balances.”
The Circuit Court of Appeal said that because Trump’s actions “allegedly violated … criminal laws” means that those actions were probably not “within the scope of his lawful discretion,” and therefore the courts have the authority to determine his guilt or innocence in a trial. (4) The term “lawful discretion,” used by the Court of Appeal seems to mean that, under Marbury, the Executive does NOT have the “discretion” to act outside the law.
BOTH the District trial Court and the Circuit Court of Appeal declared that, considering the alleged facts in this case, Trump has NO immunity from prosecution for the alleged criminal conduct undertaken while acting in his official capacity as president.
Trump’s lawyers didn’t like the Appellate Court’s ruling, so they appealed to the US Supreme Court.
The Supreme Court Ruling
The Supreme Court observed that “This case is the first criminal prosecution in our Nation’s history of a former President for actions taken during his Presidency.” (5) The Court said that the main issue to be considered is whether or not a former president has immunity from a criminal prosecution for acts done while conducting his official duties.
Both sides agree that a former president has NO immunity from prosecution for allegedly criminal conduct undertaken while acting in an unofficial, or private, capacity.
Following the 1803 Marbury decision, the current Supreme Court declared that in some instances the courts have no authority to question an official’s conduct. This Court didn’t use the exact words used in Marbury, that is, the distinction between “discretionary and ministerial” acts. Instead, it used more modern language and focused on “official” verses “unofficial” acts. However, like Marbury, the Court suggested that there are some official acts for which the president is immune from prosecution, and some for which the president is NOT immune from prosecution.
The Court noted that neither party has researched and discussed the important distinction between “official” and “unofficial” acts. (16-17f) Therefore, the Supreme Court remanded this case to the District Court, basically to start all over again. Determining what is an "official" act is a question of Law, which must be argued, and upon which a court must rule. Nobody can just say, "hey, robbing a bank is one of my 'official' acts!" All the Rules of Constitutional Interpretation apply.
The Supreme Court instructed the lower court and the lawyers to consider the following three main points when re-writing their briefs.
First, if the president was undertaking the duties given to him exclusively by the Constitution, then the Judicial Branch cannot try him, and he has “absolute immunity from criminal prosecution.” (He also has absolute immunity from civil lawsuits if he was acting within the constitutional duties.) The Court stated that “At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute.” (6f, 43f)
Second, if the president was acting officially as president, but not exactly within the core constitutionally specified duties, then he has presumptive immunity. (6f) That means the courts can consider criminal charges against him, but the government must show the court that the president was not acting within the core constitutional duties.
If the government makes its case, then a former president can be prosecuted for criminal conduct undertaken while in office. In other words, if the president acts “manifestly or palpably beyond his authority,” then he doesn’t get immunity. This rule requires a case-by-case analysis to determine when it applies. (17-18, 30-31)
Third, while the first two points are about “official” conduct, if the president was not acting in any sort of official capacity, then he has no immunity at all. For example, paying hush money to a pron star, and lying about it in your campaign finance reports, are likely unofficial acts -- i.e., way out of Constitutional range.
Dissent
Three Justices of the Supreme Court dissented from the
majority opinion.
The most dramatic charge they make against the majority is that now the president is like a King, who is above the law, and can do whatever criminal acts he feels like doing because he has “absolute immunity.”
But that is a hysterical claim, and NOT at all what the Court said.
First of all, the Court is following the very old precedent of Marbury vs Madison, set forth by Chief Justice John Marshal, whom many historians say is the Greatest Chief Justice of all time. In 1803, Marshall said that some aspects of the President’s work can’t be questioned by the Courts.
Secondly, the president is NOT free to run amuck all over the country killing opponents and robbing banks. The president is ALWAYS constrained by our Constitution. The president only has absolute immunity if he is undertaking his core constitutional duties. These are stated mostly in Article II of the Constitution.
Making treaties, for example, or granting pardons to folks who committed federal crimes. He has to inform Congress about the State of the Union. He has to talk with the Attorney General about policies for the Department of Justice. He has 15 different Cabinet members to supervise. He might have to fire one of them for not doing a good job.
The Court stated that the conversations the president has with the Attorney General, for instance, must have absolute immunity, so both sides can speak freely about any kind of matter. (21f) This is like the Attorney-Client privilege we all enjoy, so it’s not a new and bizarre law.
One dissenter claims that under the majority decision in this case, if the president wants to remove the Attorney General by poisoning him, then the president can’t be prosecuted because he is exercising a “core” power to remove a Cabinet member.
Another claim is that if the president orders Navy Seals Team 6 to assassinate a political rival, like Biden having Trump assassinated, he can’t be arrested, charged with a crime, tried, and sent to prison if convicted.
But all these claims violate some long standing rules for the interpretation of laws. First, American law relies heavily on the “Reasonable Person” standard. That is, would a Reasonable Person really think that the Supreme Court has said its OK for Biden to kill Trump?
Another rule of interpretation for courts and lawyers is that a law should not be interpretated to have an absurd meaning, if it can be interpretated to have a reasonable meaning.
Also, absolute immunity does NOT cancel the House’s power of impeachment. So the president can be removed from office if the Senate votes to convict for impeachable offenses.
The Court’s opinion said that the charge against Trump of conspiring to use fake Electors so that it looked like he won in the Electoral College vote is probably far outside of his core Constitutional duties. But first, on remand, the trial court must hear all the evidence and the arguments from both sides before it makes any decision on Trump’s immunity.
The Court suggested that Trump’s discussions with state Secretaries of State and RNC officials appear to be that of a private candidate, and not official. So no immunity there. (28f)
Trump’s role in causing the Capitol riots of January 6th also has to be analyzed according to the three points I just mentioned (30-31).
This is NOT a decision that favors Trump.
In fact, both sides lost. After all the work the lawyers on both sides did, they were ordered to go back to the trial court and start all over again.*
For all these reasons, then, I’m sure you will agree that, despite the media hype, the Supreme Court has acted in a fair and just manner in this case.
The Political Science Interpretivist
https://interpretat.blogspot.com/
@InterpretivePo1
*We taxpayers have paid Jack Smith over $12M.
Trump’s legal bills may be over $100M.
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