Eroding Checks and Balances: The Immunity Decision
Susan Sullivan Lagon | July 24, 2024
It seems the Founders are out of fashion. Alexander Hamilton’s language could use some updating—but not in the rhythmic style of the eponymous musical. Rather, a core principle of governance, his views of the judiciary as a branch showing “neither force nor will, merely judgement”, are out of step. It is now impossible to see the judiciary as “the least dangerous branch” (Federalist 78) with the current Supreme Court. While “purse and sword” still belong to the legislative and executive branches respectively, the Supreme Court has increasingly dominated public policymaking. The impact of the Court’s conservative majority is unmistakable. The Trump v. U.S. decision announced on the final day of the Court’s term provides a dramatic exclamation point on the bench’s sharp rightward turn. Like other blockbuster cases decided by a 6:3 margin on the Roberts Court that overturned decades of settled law (for example, Dobbs on reproductive rights & Loper on the “Chevron doctrine” of deference to administrative agencies’ expertise) the consequences of the sweeping grant of presidential immunity from criminal prosecution in Trump v. U.S. will be profound. Even within that context, many experts across the political spectrum found the 6-3 immunity ruling surprising, both in partisanship and powers granted.
“Originalism”?
The Framers would be shocked by how casually the six-justice majority—many of them self-identified “originalists”—conferred near-monarchical power upon the President by placing the office above the law. Recall that fear of a tyrannical ruler was so strong in the early republic that the Articles of Confederation didn’t have any executive at all, just the legislature. A dozen years later, the Constitution remedied that arrangement and delegated powers to a President but instituted safeguards because the Framers clearly understood the dangers inherent in unchecked power. In Federalist 51, James Madison famously noted, “If angels were to govern men, neither external nor internal controls on government would be necessary.” They were realists about human nature, ambition, and the quest for control. In Federalist 10 Madison recognized that “Enlightened statesmen will not always be at the helm.” Hamilton’s insistence on “energy in the executive” in Federalist 70 called for a singular president who could be decisive and act swiftly but would also be solely responsible for his actions and thereby accountable. Evidently the Court’s majority in Trump v. U.S. didn’t find the Framer’s wariness of executive power probative.
Details of the case:
A federal grand jury indicted former President Donald Trump for conspiring to “overturn the legitimate results of the 2020 presidential election.” Specifically, Trump was charged with deceiving state officials, organizing fraudulent slates of electors in seven states, having them send false certifications to Congress, instructing the Department of Justice to urge states to replace their legitimate electors, enlisting the Vice President to alter the results of the certification process in Congress on January 6, 2021, and encouraging the violence that ensued at the Capitol.
Arguing that he enjoys absolute immunity from prosecution for actions taken pursuant to his official responsibilities, Trump moved for dismissal. The district court and the D.C. Circuit denied Trump’s motion. The Supreme Court granted review.
Searching for precedent in a novel case
As with so many things associated with Trump’s presidency, the word “unprecedented” is apt. The Court had never been asked to rule on presidential immunity from criminal prosecution, nor had it encountered a plaintiff who was both a former chief executive and a convicted felon. History suggests that former President Gerald Ford’s pardon of Richard Nixon would have been unnecessary if Trump’s assertion of absolute immunity applied. In Nixon v. Fitzgerald in 1982, the Court ruled that a President enjoys absolute immunity from civil damages for acts within the “outer perimeter” of his duties so that the President would not be distracted from his public role. However, in Clinton v. Jones in 1997, a unanimous Court rejected claims of civil immunity for acts before a President had taken office.
In 2000, the Department of Justice issued a memo that a President is immune from criminal prosecution while in office. The Mueller investigation into 2016 election interference relied upon this policy; Special Counsel Mueller clarified this and that “if we had confidence that the President clearly did not commit a crime, we would have said that”. Most recently, the Court ruled in Trump v. Vance (2020) that the President did not enjoy immunity from state criminal processes, in this case Trump’s refusal to comply with a subpoena for financial records in New York.
The Court delivers a get-out-of-jail-free card
Chief Justice John Roberts’s majority opinion identifies three types of presidential actions and the level of criminal immunity each warrants. Absolute immunity applies to actions taken by former Presidents that stem from the “core constitutional powers” Article II grants to the President alone, for example, commanding the armed forces, granting pardons, and appointing judges and administration officials. The next category is presumptive immunity for presidential actions taken on the “outer perimeter of his official responsibility,” a murkier area. The final category, unofficial acts, enjoy no immunity.
The Court ruled that Trump’s consultations with the Justice Department clearly fell within the first category of core constitutional powers. But sifting through the other charges to determine which actions were “official” and thereby entitled to “presumptive immunity” was remanded to Judge Tanya Chutkan’s district court where the case originated. That task will be made even trickier thanks to the opinion’s further stipulating that “in dividing official from unofficial conduct, courts may not inquire into the [former] President’s motives.”
That requirement went too far for Justice Amy Coney Barrett. Her concurring opinion noted that some allegations in the indictment were unofficial conduct, for example, persuading state officials to investigate alleged election fraud. She also saw no reason why courts couldn’t use protected actions as evidence in criminal prosecutions.
Justice Clarence Thomas also concurred and raised the unrelated issue of whether the office of special counsel is constitutional. His concurrence was cited three times by Judge Aileen Cannon in Florida in summarily dismissing the classified documents case against Trump. Her action has been appealed by Special Counsel Jack Smith.
“With fear for our democracy, I dissent.”
Justice Sonia Sotomayor read her entire, impassioned, 29-page dissenting opinion from the bench. Joined by Justices Elena Kagan and Ketanji Brown Jackson, her dissent raised the specter of criminal conduct related to core official actions: Ordering SEAL Team 6 to assassinate a political rival? Organizing a coup to hold onto political power? If he takes a bribe for a pardon? “Immune. Immune, immune, immune.” Lamenting that the “relationship between the President and the people he serves has shifted irrevocably,” Sotomayor concluded, “In every use of official power, the President is now a king above the law.”
During oral argument, Justice Neil Gorsuch observed, “We’re writing a rule for the ages.”
More than two centuries before, at the conclusion of the Constitutional Convention in 1787 Benjamin Franklin was reportedly asked, “Well, Doctor? What have we got, a republic or a monarchy?” Franklin quipped, “a republic, if you can keep it!” Future Presidents will have to answer that question as they exercise their newly expanded authority without concern for criminal prosecution.
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