The folks at Good Authority aren’t too good at posting contrary views in the Comments section. Guess they feel it would undermine their “authority”!
Andrew Rudalevige’s essay at Good Authority has some serious flaws; that is if US v Trump is to be clearly understood by political scientists, so they can explain it to their classes.
First, the very title is a blunder. He writes, “The Supreme Court’s immunity decision sidesteps history.”
In fact, the Opinion follows, and draws “good authority” from, the 1803 case of Marbury v Madison. One of the things Chief Justice John Marshal wrote in Marbury is that there are two kinds of official government acts: discretionary and ministerial. He said the courts cannot question discretionary acts made by an official, because these are a matter of professional judgment. The Robert’s Opinion follows this principle of immunity, but re-states it in the more modern language of “official,” with a “core” and periphery, and “unofficial.” (More on this below.)
The Prof further errs in asserting, “Indeed, the ruling goes well beyond setting a ‘core’ of presidential autonomy to lay out a vague but expansive set of principles overextending immunity and undermining accountability.”
This is how the hysteria mongering media and fund raisers of all sorts characterize the decision. But it is inaccurate.
Besides following precedent, the principles of analysis the Court sets out actually DO NOT “overextend immunity” or “undermine accountability” at all. The Court simply clarifies how to analyze the case at hand, and succeeding cases that involve presidential immunity claims.
As the Court says, “This case is the first criminal prosecution in our Nation’s history of a former President for actions taken during his Presidency.” Therefore, the Court provides guidance for analyzing such cases. This consists of three principles of analysis, which Rudalevige states. (And which I have stated in a previous post.*)
None of these rules give the president any new powers. The first, the “core powers” rule, is completely consistent with what John Marshall stated. The Robert’s Court Opinion only aims at clarification.
The second, the “presumed immunity” rule, simply draws attention to the need to define the boundaries of the “core powers,” as well as clarifying that the presumption is rebuttable: for example if the conduct is “manifestly or palpably beyond [her or his] authority.”
And third, the zero immunity rule, is for private conduct. This rule shows the limit on the application of the first two rules.
These rules of analysis in NO way at all “extend” presidential powers or immunity. In the first place, no court had ever ruled in a specific case what the extent of presidential immunity is. So there was nothing there to “extend.” The fact of some immunity was established in Marbury.
The claim of “extended” immunity is not only nonsense, but the Court’s Opinion is not a king maker in any way shape or form. Why the three dissenters to the Opinion would make such a baseless proclamation isn’t explained by any of them.
Prof Rudalevige is correct in quoting Roberts’s statement that “in dividing official from unofficial conduct … courts may not inquire into the President’s motives.” But he misunderstands the meaning of the quotes. He writes, “If it is a power the president has (e.g., issuing a pardon), prosecutors can’t ask whether that action was taken with criminal intent (e.g., in the knowledge a hefty payoff was forthcoming.)” (It. ad.)
But courts and prosecutors have different functions.
Courts can distinguish between “official” and “unofficial” acts without inquiring into motive. It is a question of behavior. If the acts are of the sort defined by the Constitution, or implied in its language, then they are most probably “official.” (Of course, in a unique set of circumstances there may be facts that alter this principle of interpretation.) After hearing all the evidence and arguments, a court can make a ruling on that.
“Prosecutors,” when deciding whether or not to indict, certainly can, and must, look at “criminal intent.” Mens rea is what makes an actor susceptible to conviction for committing a crime. Without it, there is no crime. The function of a prosecutor deciding whether or not to indict is not the same as a court ruling on the official/unofficial issue. The prosecutor makes her decision long before the case comes before a judge. If it were true that “prosecutors can’t ask whether that action was taken with criminal intent,” then they wouldn’t have a job.
Once again, the Prof is wrong in concluding that, “This greatly expands the practical scope of the immunity granted.”
But he just won’t give up on that interpretation. Using the word “Certainly,” he writes, “Certainly the Supreme Court now envisions a much larger zone of ‘preclusive’ autonomy than did the delegates to the Constitutional convention.”
The Framers of the Constitution certainly didn’t want a “king,” having just rebelled against George III. But they never discussed any “zone” of immunity, and they intended the Executive Branch to have clear limits, which the other two branches would keep in check.
Again, the Marbury Opinion set the precedent for some degree of immunity. The Robert’s Opinion is just trying to clarify how to analyze the problem of limits, and does NOT extend such limits., which had never been deliniated.
Political scientists will want to teach their students a responsible interpretation of US v Trump. But parroting hysteria won't do that.
I have written an explanation of the Opinion, suitable for classroom use, here at
*Executive Immunity – Beyond the Hype
https://interpretat.blogspot.com/2024/07/executive-immunity-beyond-hype.html
William J. Kelleher, Ph.D.
The Political Science Interpretivist
https://interpretat.blogspot.com
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