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Today in SCOTUSland...
Richard Nixon is reported to have said "If the President does it, it's not illegal." I would read that in the contrapositive: "if it's illegal, then the President didn't do it; the private citizen who happens to be President at the moment did it, and should therefore be prosecuted like any other private citizen." The DC Circuit Court, in denying Trump's claim of immunity, basically agreed: "the fact that Trump's actions 'allegedly violated generally applicable criminal laws' meant that those actions 'were not properly within the scope of his lawful discretion.'"
Justice Roberts, and the 6-member Republican-appointed majority of the Supreme Court, mostly agree with Nixon's formulation. Former Presidents have absolute immunity for actions they took "within their core Presidential powers" (which aren't defined anywhere in the Constitution but evidently include pardons, vetoes, and cabinet and ambassadorial appointments), and presumptive immunity for any other "official actions" they took as President. "Official actions" are interpreted very broadly, "covering actions so long as they are not manifestly or palpably beyond his authority." In deciding whether an action is "official" or not, "courts cannot consider the president’s motives, nor can they designate an act as unofficial simply because it allegedly violates the law," on grounds that even opening such questions to court examination after the fact would impede the President's ability to do the job. Apparently the only way to tell whether an act is "official" is whether it uses a power granted to the President in the Constitution.
So if, hypothetically, a President had a personal interest in a particular criminal case, and one of the star witnesses was facing Federal charges, the President could openly and publicly offer the witness a pardon in exchange for changing or refusing testimony. (For a witness not facing Federal charges, the President could openly offer the witness an ambassadorship or a high-ranking government post instead.) Anyone else who offered a witness something of value in exchange for changing or refusing testimony would be guilty of witness-tampering, but when the President does it, it's not illegal. Indeed, this falls into the "absolute immunity" category above: there isn't even an opening to argue about it. Ironically, if the President were to simply offer the witness money in exchange for changing or refusing testimony, that probably wouldn't be immune because it doesn't involve using a Presidential power.
Likewise, a President could openly and blatantly sell pardons and governmental posts in exchange for money, an act which for anyone else would be bribery. But when a President does it, it's not illegal.
In both of the above cases, Congress could of course impeach the President, but as we've seen, if the President commands the personal loyalty of a third of the Senate, that's a toothless threat.
For less-"core" aspects of Presidential power, the Court says the President is "presumptively immune", in that the prosecutor bears the burden of proof that charging former Presidents for this particular crime wouldn't "threaten the power and functioning of the executive branch". (More precisely, "the President must ... be immune from prosecution for an official act 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.'") If the judge agrees that that high bar has been met, then the prosecutor can at least go ahead and bring the charge.
The majority opinion doesn't give much guidance on how to decide these questions. It lists several powers that are "core" and therefore "absolutely immune", but doesn't rule out other powers falling into that category too. It lists a lot of things that are "official" and therefore "presumptively immune", but doesn't name a single act -- even those acknowledged by Trump's lawyers as "unofficial" -- that's definitely "unofficial" and non-immune. All the guidance is in favor of immunity. (Justice Barrett's concurring opinion is slightly less generous, identifying several specific allegations against Trump as examples of things that don't involve Presidential power and therefore are not immune.)
The majority writes "Presidents cannot be indicted based on conduct for which they are immune from prosecution.... Testimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial." So if a particular act is considered immune, prosecutors can't use it as evidence of criminal intent in other, non-immune acts. For example, since most of Trump's communications with the Vice President, the Attorney General, and other high-level advisers are considered immune, they can't be used as evidence that Trump knew there was no evidence of widespread fraud and he had lost the election fair and square, and was trying to change the result by any means necessary to keep himself in office. The majority argues that knowing that such communications might become evidence could prevent a President from conferring frankly with advisors. (Justice Barrett's concurring opinion disagrees on the question of using immune actions as evidence in non-immune actions.)
A large fraction of a President's communications are thus immune, not only from prosecution as crimes in themselves, but from being used as evidence in other crimes. For example, when Trump told the Justice Department to send letters to State election officials with "concerns" about election fraud (for which they actually had no evidence), inviting States to retroactively change their certified slates of electors, the Acting Attorney General resisted this order, and Trump repeatedly threatened to fire him and replace him with someone who would send the letters. Since communicating with, appointing, and firing cabinet officials are core Presidential powers, this entire episode cannot be charged, nor can it be used as evidence supporting other charges.
(Almost as a side note, the majority's opinion appears to grant carte blanche to Presidential communication with the Justice Department, including interfering in individual cases. Indeed, the President could fabricate false evidence against a political rival, or order the Justice Department to do so, and he couldn't be prosecuted for it.)
The Court's opinion is careful to look like it's "taking a middle ground" (e.g. rejecting Trump's ludicrous claim that since the impeachment clause says a President can be criminally prosecuted after being impeached, convicted, and removed, that means a former President can't be criminally prosecuted without first being impeached, convicted, and removed), while actually giving Trump 90% of what he wants. (Trump had claimed he could be prosecuted criminally only if first impeached and convicted by the Senate; the majority took that away with one hand, but gave back with the other, saying even if he were impeached and convicted, he'd still be immune from prosecution for official acts.)
One of the things Trump most wants is delay, and he's certainly got it. The case has already been delayed by at least six months to decide the question of immunity, and the Court, on the last day of this year's session, has sent things back with minimal guidance to the District Court to decide, for each individual charge, and each individual source of evidence, whether it enjoys absolute immunity, presumptive immunity (in which case it must decide whether allowing it would "intrude on the authority and functions of the Executive Branch"), or no immunity. Each of these individual decisions will likely be appealed by one side or the other to the Circuit Court, and then to the Supreme Court, so even if Trump loses the election, it could easily be a year or more before the charges themselves can be addressed... and weeks or months more before a verdict. And, of course, if he wins the election, the Federal cases will both be dropped, leaving only the Georgia case limping along under the constraints of prosecuting a sitting President who promises "retribution" against anyone who displeases him.
BTW, the Court didn't say anything about whether its immunity and inadmissibility rulings apply to state courts, or only Federal courts. If they apply to state courts, the Georgia case too is reduced to almost nothing, even for the 18 defendants who aren't named Trump, because much of the evidence has become inadmissible.
The majority dismisses, quite insultingly, the dissent's "fear mongering on the basis of extreme hypotheticals about a future where the President 'feels empowered to violate federal criminal law,'" expressing more concern about "an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next." Indeed, it's amazing that we've gotten through 240 years of Constitutional government without each successive President prosecuting his predecessors; could it be because most of them didn't commit blatantly self-serving crimes using their official powers?"
One must also wonder how much comfort it gives a former President to face not prosecution, but merely assassination, by the current President.
Justice Thomas's concurring opinion, unsurprisingly, holds that the majority didn't go far enough; he thinks the whole notion of a Special Counsel is un-Constitutional, in which case Jack Smith has no legal authority to bring any charges against anyone. The Constitutionality of the Special Counsel's office must be decided before the Court should have considered, or even heard arguments on, the question of Presidential immunity.
The dissent by Sotomayor, Kagan, and Jackson points to a long history, ranging from the Federalist Papers and Constitutional Convention, to the Nixon, Reagan, and Clinton administrations, to Trump's own defense counsel, of assuming and reassuring people that former Presidents are subject to criminal prosecution if they commit actual crimes, even in their official capacity. (Trump's impeachment counsel said “If my colleagues on this side of the Chamber actually think that President Trump committed a criminal offense... [a]fter he is out of office, you go and arrest him.")
Both sides cite Fitzgerald, a case in which former-President Nixon was ruled immune from civil suit by someone who had lost his Federal job in a reorganization ordered by the President. The dissenters in this case point out that the Fitzgerald court disagreed on many things, but were unanimous that immunity was more warranted in such a civil case than in a criminal case: "a contention that the President is immune from criminal prosecution in the courts, if ever made, would not be credible." That incredible contention has now been made by SCOTUS itself.
"I am deeply troubled by the idea, inherent in the majority's opinion, that our Nation loses something valuable when the President is forced to operate within the confines of federal criminal law."
The dissenters also point out that allowing former Presidents immunity, while forbidding current Presidents to prosecute them, does not actually "respect the independence of the Presidency", instead preventing the President from "taking Care that the Laws be faithfully executed" and "exalting the occupants of the office over the office itself".
The dissenters see no significant difference between the majority's "absolute immunity" and "presumptive immunity", except that the former don't include any of the charges against Trump; a majority that prides itself on making no rulings where it doesn't have to has invented a whole broad category of absolutely-immune Presidential acts that don't come up in this case. Perhaps the majority created this category in order to have a three-point spectrum, so lower-court decisions will put most things into the middle category (well-known psychology), which is enough to immunize the President in most cases.
"The official-versus-unofficial act distinction... seems both arbitrary and irrational, for it suggests that the unofficial criminal acts of a President are the only ones worthy of prosecution. Quite to the contrary, it is when the President commits crimes using his unparalleled official powers that the risks of abuse and autocracy will be most dire."
"Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority's message today."
The Founding Fathers are spinning in their graves tonight.
As usual, the three women appointed by Democratic Presidents constitute the minority. Even within the Republican-appointed majority bloc, the one Justice who sees Presidents as slightly more subject to the rule of law, the one willing to identify a few actions as definitely non-immune, is the one woman. Every male on the court ruled that a President needs the untrammeled freedom to do whatever he wants in office, even if it blatantly violates the law. It's the whole "cowboy" thing, or perhaps "Dirty Harry": alpha-males are their own law, and you can't expect them to submit to following the same rules as we lesser mortals. I guess in the choice between "a nation of laws" and "a nation of men", we know where these guys stand.
Justice Roberts, and the 6-member Republican-appointed majority of the Supreme Court, mostly agree with Nixon's formulation. Former Presidents have absolute immunity for actions they took "within their core Presidential powers" (which aren't defined anywhere in the Constitution but evidently include pardons, vetoes, and cabinet and ambassadorial appointments), and presumptive immunity for any other "official actions" they took as President. "Official actions" are interpreted very broadly, "covering actions so long as they are not manifestly or palpably beyond his authority." In deciding whether an action is "official" or not, "courts cannot consider the president’s motives, nor can they designate an act as unofficial simply because it allegedly violates the law," on grounds that even opening such questions to court examination after the fact would impede the President's ability to do the job. Apparently the only way to tell whether an act is "official" is whether it uses a power granted to the President in the Constitution.
So if, hypothetically, a President had a personal interest in a particular criminal case, and one of the star witnesses was facing Federal charges, the President could openly and publicly offer the witness a pardon in exchange for changing or refusing testimony. (For a witness not facing Federal charges, the President could openly offer the witness an ambassadorship or a high-ranking government post instead.) Anyone else who offered a witness something of value in exchange for changing or refusing testimony would be guilty of witness-tampering, but when the President does it, it's not illegal. Indeed, this falls into the "absolute immunity" category above: there isn't even an opening to argue about it. Ironically, if the President were to simply offer the witness money in exchange for changing or refusing testimony, that probably wouldn't be immune because it doesn't involve using a Presidential power.
Likewise, a President could openly and blatantly sell pardons and governmental posts in exchange for money, an act which for anyone else would be bribery. But when a President does it, it's not illegal.
In both of the above cases, Congress could of course impeach the President, but as we've seen, if the President commands the personal loyalty of a third of the Senate, that's a toothless threat.
For less-"core" aspects of Presidential power, the Court says the President is "presumptively immune", in that the prosecutor bears the burden of proof that charging former Presidents for this particular crime wouldn't "threaten the power and functioning of the executive branch". (More precisely, "the President must ... be immune from prosecution for an official act 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.'") If the judge agrees that that high bar has been met, then the prosecutor can at least go ahead and bring the charge.
The majority opinion doesn't give much guidance on how to decide these questions. It lists several powers that are "core" and therefore "absolutely immune", but doesn't rule out other powers falling into that category too. It lists a lot of things that are "official" and therefore "presumptively immune", but doesn't name a single act -- even those acknowledged by Trump's lawyers as "unofficial" -- that's definitely "unofficial" and non-immune. All the guidance is in favor of immunity. (Justice Barrett's concurring opinion is slightly less generous, identifying several specific allegations against Trump as examples of things that don't involve Presidential power and therefore are not immune.)
The majority writes "Presidents cannot be indicted based on conduct for which they are immune from prosecution.... Testimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial." So if a particular act is considered immune, prosecutors can't use it as evidence of criminal intent in other, non-immune acts. For example, since most of Trump's communications with the Vice President, the Attorney General, and other high-level advisers are considered immune, they can't be used as evidence that Trump knew there was no evidence of widespread fraud and he had lost the election fair and square, and was trying to change the result by any means necessary to keep himself in office. The majority argues that knowing that such communications might become evidence could prevent a President from conferring frankly with advisors. (Justice Barrett's concurring opinion disagrees on the question of using immune actions as evidence in non-immune actions.)
A large fraction of a President's communications are thus immune, not only from prosecution as crimes in themselves, but from being used as evidence in other crimes. For example, when Trump told the Justice Department to send letters to State election officials with "concerns" about election fraud (for which they actually had no evidence), inviting States to retroactively change their certified slates of electors, the Acting Attorney General resisted this order, and Trump repeatedly threatened to fire him and replace him with someone who would send the letters. Since communicating with, appointing, and firing cabinet officials are core Presidential powers, this entire episode cannot be charged, nor can it be used as evidence supporting other charges.
(Almost as a side note, the majority's opinion appears to grant carte blanche to Presidential communication with the Justice Department, including interfering in individual cases. Indeed, the President could fabricate false evidence against a political rival, or order the Justice Department to do so, and he couldn't be prosecuted for it.)
The Court's opinion is careful to look like it's "taking a middle ground" (e.g. rejecting Trump's ludicrous claim that since the impeachment clause says a President can be criminally prosecuted after being impeached, convicted, and removed, that means a former President can't be criminally prosecuted without first being impeached, convicted, and removed), while actually giving Trump 90% of what he wants. (Trump had claimed he could be prosecuted criminally only if first impeached and convicted by the Senate; the majority took that away with one hand, but gave back with the other, saying even if he were impeached and convicted, he'd still be immune from prosecution for official acts.)
One of the things Trump most wants is delay, and he's certainly got it. The case has already been delayed by at least six months to decide the question of immunity, and the Court, on the last day of this year's session, has sent things back with minimal guidance to the District Court to decide, for each individual charge, and each individual source of evidence, whether it enjoys absolute immunity, presumptive immunity (in which case it must decide whether allowing it would "intrude on the authority and functions of the Executive Branch"), or no immunity. Each of these individual decisions will likely be appealed by one side or the other to the Circuit Court, and then to the Supreme Court, so even if Trump loses the election, it could easily be a year or more before the charges themselves can be addressed... and weeks or months more before a verdict. And, of course, if he wins the election, the Federal cases will both be dropped, leaving only the Georgia case limping along under the constraints of prosecuting a sitting President who promises "retribution" against anyone who displeases him.
BTW, the Court didn't say anything about whether its immunity and inadmissibility rulings apply to state courts, or only Federal courts. If they apply to state courts, the Georgia case too is reduced to almost nothing, even for the 18 defendants who aren't named Trump, because much of the evidence has become inadmissible.
The majority dismisses, quite insultingly, the dissent's "fear mongering on the basis of extreme hypotheticals about a future where the President 'feels empowered to violate federal criminal law,'" expressing more concern about "an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next." Indeed, it's amazing that we've gotten through 240 years of Constitutional government without each successive President prosecuting his predecessors; could it be because most of them didn't commit blatantly self-serving crimes using their official powers?"
One must also wonder how much comfort it gives a former President to face not prosecution, but merely assassination, by the current President.
Justice Thomas's concurring opinion, unsurprisingly, holds that the majority didn't go far enough; he thinks the whole notion of a Special Counsel is un-Constitutional, in which case Jack Smith has no legal authority to bring any charges against anyone. The Constitutionality of the Special Counsel's office must be decided before the Court should have considered, or even heard arguments on, the question of Presidential immunity.
The dissent by Sotomayor, Kagan, and Jackson points to a long history, ranging from the Federalist Papers and Constitutional Convention, to the Nixon, Reagan, and Clinton administrations, to Trump's own defense counsel, of assuming and reassuring people that former Presidents are subject to criminal prosecution if they commit actual crimes, even in their official capacity. (Trump's impeachment counsel said “If my colleagues on this side of the Chamber actually think that President Trump committed a criminal offense... [a]fter he is out of office, you go and arrest him.")
Both sides cite Fitzgerald, a case in which former-President Nixon was ruled immune from civil suit by someone who had lost his Federal job in a reorganization ordered by the President. The dissenters in this case point out that the Fitzgerald court disagreed on many things, but were unanimous that immunity was more warranted in such a civil case than in a criminal case: "a contention that the President is immune from criminal prosecution in the courts, if ever made, would not be credible." That incredible contention has now been made by SCOTUS itself.
"I am deeply troubled by the idea, inherent in the majority's opinion, that our Nation loses something valuable when the President is forced to operate within the confines of federal criminal law."
The dissenters also point out that allowing former Presidents immunity, while forbidding current Presidents to prosecute them, does not actually "respect the independence of the Presidency", instead preventing the President from "taking Care that the Laws be faithfully executed" and "exalting the occupants of the office over the office itself".
The dissenters see no significant difference between the majority's "absolute immunity" and "presumptive immunity", except that the former don't include any of the charges against Trump; a majority that prides itself on making no rulings where it doesn't have to has invented a whole broad category of absolutely-immune Presidential acts that don't come up in this case. Perhaps the majority created this category in order to have a three-point spectrum, so lower-court decisions will put most things into the middle category (well-known psychology), which is enough to immunize the President in most cases.
"The official-versus-unofficial act distinction... seems both arbitrary and irrational, for it suggests that the unofficial criminal acts of a President are the only ones worthy of prosecution. Quite to the contrary, it is when the President commits crimes using his unparalleled official powers that the risks of abuse and autocracy will be most dire."
"Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority's message today."
The Founding Fathers are spinning in their graves tonight.
As usual, the three women appointed by Democratic Presidents constitute the minority. Even within the Republican-appointed majority bloc, the one Justice who sees Presidents as slightly more subject to the rule of law, the one willing to identify a few actions as definitely non-immune, is the one woman. Every male on the court ruled that a President needs the untrammeled freedom to do whatever he wants in office, even if it blatantly violates the law. It's the whole "cowboy" thing, or perhaps "Dirty Harry": alpha-males are their own law, and you can't expect them to submit to following the same rules as we lesser mortals. I guess in the choice between "a nation of laws" and "a nation of men", we know where these guys stand.
no subject
I've been trying all afternoon to write something coherent about this and came nowhere close to what you did. Thank you for this.