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Above the Law
Yesterday, the Supreme Court handed down its decision in Trump v. U.S. and then, cowards that they are, hightailed it out of town. Must be nice to have a job where there is literally zero accountability. The Supremes are above the law (see Thomas, Clarence) and now, in many ways, so too are presidents (see Trump, Donald).
This doesn't happen too often, and yet, this is the third time in a week that a story is so significant that we're going to give the entire day's posting over to it. Let's get to it:
What Did the Supreme Court Say?
Lawyer-reader A.R. in Los Angeles was once again on the job:
In a 6-3 decision, the Court reversed the appeals court and remanded to the district court for further factual determinations as to whether the conduct alleged in the indictment is "official" or "unofficial." The Court held that presidential acts are to be put into one of three buckets to determine if those acts are subject to criminal liability: (1) acts within the president's exclusive constitutional authority, (2) official acts; and (3) unofficial acts.
For those 3 categories of conduct the Court ruled as follows: (1) presidents are absolutely immune for acts within their "conclusive and preclusive constitutional authority," (2) there is at least a presumption of immunity (for now) for official acts, including "acts within the outer perimeter of his official responsibility" and (3) there is no immunity for unofficial acts. The Court saved for another day the question whether certain official acts should also be covered by absolute immunity. I call this the take-backsies provision - depending on what Judge Tanya Chutkan does, the Court gave itself permission to say, "Ha, ha! Just kidding, it's absolute immunity after all! Psych!"
For now, the government can rebut this presumption of immunity for official acts by showing that applying a criminal law to an official act poses no "danger of intrusion to the authority and functions of the Executive Branch." Easy-peasy. The Court then provided some guidance as to how to categorize the specific allegations in the indictment and articulates two general rules:From there, the Court looked at some of the specific allegations in the indictment.
- A court can't inquire into a president's motive (so wanting to overturn an election is irrelevant to the inquiry about whether his actions qualify as "official")
- Conduct is not unofficial "merely because it allegedly violates a generally applicable law."
Associate Justice Clarence Thomas' concurrence is a hat tip to Judge Aileen Cannon regarding whether Special Counsel Jack Smith's appointment is valid—not surprisingly, Thomas argues that it is not and suggests the lower courts should address this issue. Don't worry, Justice Thomas, Cannon is on the case!
- Use of the Department of Justice to make false claims about election fraud and convince states to overturn their elections results.
According to the Court, this conduct is an exercise of the president's core constitutional functions. "Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials."
The Court references allegations in paragraphs 70-85 of the indictment, which all involve the efforts of Trump and Jeffrey Clark to convince other Department of Justice officials to send a letter to the states falsely stating that the Department of Justice had initiated a fraud investigation. Importantly, the Court holds that the allegations can't even be introduced as evidence to support the other claims made against Trump, et al.- Pressure on the VP to reject legitimate certificate of electors.
From the ruling: "The indictment's allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct." The Court recognizes that presiding over the Senate is not an executive branch function, it's a legislative one, but it's still an official act. So, the government must rebut the presumption by showing that prosecuting this conduct would not pose a danger of intrusion on the authority and function of the executive branch.- Conduct involving persons outside the executive branch and the fraudulent electors scheme.
The Court remands this issue to the district court to determine "whether Trump's conduct in this area qualifies as official or unofficial."- Tweets and public statements made on January 6, 2021.
The Court remands this issue to the district court to determine whether the conduct is official or unofficial.
Once that task is completed, Trump can appeal yet again before trial to dispute those findings.
Associate Justice Amy Coney Barrett's concurrence agrees generally with the majority but seems to offer more clarity on the approach. She would grant absolute immunity only for the "core executive power" of presidents but would narrow the reach of that immunity. Other official acts may be immune but would be analyzed using the following two step process: (1) whether the criminal law reaches the president's conduct and (2) whether its application to the particular facts is constitutional. Interestingly, she writes, "I understand most of the Court's opinion to be consistent with these views."
She disagrees with the majority that official conduct for which the president is immune can't be used as evidence in a criminal proceeding. She asserts that the rules of evidence are sufficient to address any concerns about undue prejudice. She also offers some guidance to Judge Tanya Chutkan: Barrett would move immediately forward with prosecution for Trump's attempt to organize alternate slates of electors, since that conduct is clearly private.
From Associate Justice Sonia Sotomayor's dissent: "Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent." We really don't know yet whether the situation is as dire as Sotomayor portrays in her dissent. She is correctly alarmed at the take-backsies provision, and that will surely raise its ugly head in the future. But given Justice Barrett's disagreement on that score and her narrower reading of Article II core functions, future outcomes are hard to predict.
Associate Justice Ketanji Brown Jackson penned a separate dissent and asserts there are sufficient legal protections and defenses a president enjoys—immunity should not be one of them. "Departing from the traditional model of individual accountability, the majority has concocted something entirely different: a Presidential accountability model that creates immunity—an exemption from criminal law—applicable only to the most powerful official in our Government."
Brown's last point is a crucial one: "indeed, the majority holds that the President, unlike anyone else in our country, is comparatively free to engage in criminal acts in furtherance of his official duties." Importantly, the majority does not hold that Trump did not commit the crimes of which he has been accused; instead, they say that even if he committed those crimes, if he can characterize his actions in a certain way, he is above the law.
It will be interesting to see what Chutkan does on remand. She will likely put Trump's conduct in two categories: (1) unofficial; and (2) official but still within the reach of the applicable criminal statute, because prosecution would "pose no danger of intrusion to the authority and functions of the Executive Branch." Once the case returns to the Supreme Court next year, the majority could reverse her decisions. But that is a worry for another day. For now, the ball is back in Judge Chutkan's court and she'll undoubtedly find that Trump has to answer for much of the conduct alleged in the indictment. Barrett identified the effort to recruit fake electors as private conduct, so that seems like low-hanging fruit to grab first.
Thanks, A.R.!
Just so everyone is on the same page, let's do an executive summary. Presidents, like all government officials, already enjoyed immunity for acts undertaken in the scope of their official duties. This is called absolute immunity. For example, if, in their capacity as commander-in-chief, a president orders a drone strike against a target and people are killed, they cannot be prosecuted for murder.
It is also the case that presidents were subject to prosecution for criminal acts undertaken in their capacity as private citizens. That has not changed.
What really happened yesterday is that, for presidents, the Court expanded absolute immunity to include certain acts that would previously have been criminal. Overseeing the DoJ is part of the president's core responsibilities, and so putting pressure on DoJ officials is, according to the majority's reasoning, covered by absolute immunity. This finding, had it been in place 50 years ago, would have rendered Richard Nixon immune from prosecution and would have made a pardon unnecessary.
The Court also potentially extended immunity, for presidents, to include certain "official" conduct undertaken while in office. They have created a somewhat squishy test here, which boils down to "Would prosecuting this conduct infringe on executive authority?" It is now presumed that the answer to that question is "yes," and that the conduct is thus un-prosecutable, unless prosecutors can prove the answer is "no." And as prosecutors try to do that, they cannot consider the president's motives, nor can they rely on communications between the president and his underlings as evidence. The Court has tossed this official conduct issue back to the lower courts to figure out. Later, the Court will likely take a look-see to assess how happy they are with that figuring.
We understand entirely what the three hard-right justices are thinking. They believe in the unitary executive theory—basically, as few restraints on presidential power as is possible. We also understand what the three lefty justices are thinking. They are repulsed by the idea of an unrestrained president. The complaint rendered by Sotomayor in her dissent yesterday has been widely reported: "[T]he President is now a king above the law."
What we don't really understand is what the three center-right justices are thinking. They have not previously been especially willing to tote Trump's legal water, and even ruled against him in Trump v. Vance, which became critical to the criminal fraud case in which the former president was convicted. Point being, the Brett Kavanaugh/John Roberts/Amy Coney Barrett trio has not previously shown themselves to be in favor of unlimited presidential power, or in favor of letting Trump do whatever he wants.
That said, the six justices in the majority all prefer a Republican in the White House as opposed to a Democrat. And the only Republican who can be elected president this year is Trump. So, we are open to the argument that the middle three were not helping Trump, per se, but were helping the Republican Party re-take the White House by making further Trump convictions before November a near impossibility. That's the best we can come up with, at the moment.
Whatever the agenda is, Roberts' majority opinion was an exercise in sophistry, as he tried to make a constitutional argument for the ruling. As we note above, "official acts" and "official conduct" are now both subject to immunity, which means there really is nothing done in an "official" capacity that can be prosecuted. The fellows who wrote the Constitution did not want that to be the case, despite Roberts' bleating to the contrary. First, they were people who had rebelled against a king they felt had too much power. They also specifically referred to "high crimes and misdemeanors," which to them meant "unlawful acts undertaken by government officials in their official capacity." The key word there is "high," which meant something like "of a government official." If they did not wish to focus on official acts, they would have just written "crimes and misdemeanors."
One must also wonder how carefully the middle three have thought this through. You would certainly think that they would give careful consideration, because that is their job. But that assumption doesn't always seem to hold. It is probably not the case that a president could now order a rival to be assassinated. But, thinking back to a favorite trick of Richard Nixon, what if a president impounds money appropriated by Congress? What if they withhold the entire budget for, say, the Department of Education, or... foreign aid for Ukraine? Or what if they decide to stop issuing paychecks to the Supreme Court? We don't see how that could possibly be prosecuted in the new context created by SCOTUS yesterday. Or, to take another Nixon favorite, what about ordering the IRS to audit the tax returns of enemies? Or, to take a third Nixon trick, how about using the FBI to spy on political rivals?
Yet another possibility:
Remember, courts and prosecutors are not allowed to consider motivations, and if there is any plausible official justification for the behavior (the money is going to be used to pay down the national debt!) it could well be kosher. Now that Pandora's Box is open, one can think of all manner of misbehavior that is possible if one spends, oh, 2 whole minutes on the question.
More Legal Analysis
Just to give a sense of what other legal experts are saying, here are a few excerpts from pieces we read yesterday:Mark Joseph Stern, Slate: The Supreme Court's conservative supermajority fundamentally altered American democracy on Monday, awarding the president a sweeping and novel immunity when he weaponizes the power of his office for corrupt, violent, or treasonous purposes. This near-insurmountable shield against prosecution for crimes committed while in office upends the structure of the federal government, elevating the presidency to a king-like status high above the other branches.
Rick Hasen, UCLA Department of Political Science: Is the Supreme Court obtuse or disingenuous? In its awful immunity ruling on Monday benefiting Donald Trump, the court seems so worried about future threats to democracy that could come from the possibility of bogus future criminal prosecutions of former presidents that it is willing to let a legitimate election subversion prosecution over a current threat against democracy go by the wayside.
Ruth Marcus, The Washington Post: Ignore the majority's protestations to the contrary. The Supreme Court has just ruled that the president is, in fact, above the law—absolutely immune from criminal prosecution for some conduct and "presumptively" immune for much else. This broad grant of immunity raises the stakes for November's election immeasurably. The risk is no longer just that Donald Trump will evade responsibility for his actions as president, though that seems close to foreordained by Monday's ruling. It is that he will be emboldened by the protection the court just gave him to behave even more unconscionably in a second term.
Joe Patrice, Above the Law: The Supreme Court rejected Donald Trump's insane theory that presidents can only be criminally prosecuted if the House impeached and the Senate convicted on the exact behavior in the indictment... and then accepted every other stupid, atextual, ahistorical argument to keep their personal political patron out of jail.
Neil Katyal, MSNBC: [It is a] blueprint for how to end the rule of law.
Derek Muller, University of Notre Dame: It definitely gives more protection to the president, but I think there are pitfalls for future administrations if they were to rely too heavily upon it.
There are two basic assessments: (1) this is really bad, or (2) this is pretty bad, but let's wait and see exactly how bad it is.
The Politicians Respond
We think the response of various politicians is also instructive. Here are three from each of the major political parties:
Joe Biden: This decision today has continued the court's attack in recent years on a wide range of long established legal principles in our nation, from gutting voting rights and civil rights to taking away a woman's right to choose to today's decision that undermines the rule of law of this nation.
Senate Majority Leader Chuck Schumer (D-NY): This is a sad day for America and a sad day for our democracy. The very basis of our judicial system is that no one is above the law. Treason or incitement of an insurrection should not be considered a core constitutional power afforded to a president.
House Minority Leader Hakeem Jeffries (D-NY): The Framers of the Constitution envisioned a democracy governed by the rule of law and the consent of the American people. They did not intend for our nation to be ruled by a king or monarch who could act with absolute impunity.
Donald Trump: A really bad day for Deranged Jack Smith, the wacko prosecutor used for Crooked Joe Biden's attack on his Political Opponent. Today, as in the past, the Supreme Court gave the Deranged One a high level SPANKING! His "real" bosses, Andrew Weissmann and Lisa Monaco, not to mention Merrick Garland, whose once great reputation has been shattered by these Thugs, and his constant defense of Crooked Joe, must be furious at him. Garland ought to call an end to this never ending HOAX, and let people focus on bringing back Greatness to America!
Speaker Mike Johnson (R-LA): Today's ruling by the Court is a victory for former President Trump and all future presidents, and another defeat for President Biden's weaponized Department of Justice and Jack Smith.
House Majority Leader Steve Scalise (R-LA): While it's becoming increasingly clear Democrats believe their only path to victory in November is through prosecuting their political opponent, today's decision makes it clear this is not allowed in our constitutional system.
The battle lines have already been drawn.
Good News for Trump
Many, many headlines focused on how good the ruling is for the once-and-would-be-future president, and they're not wrong. Obviously, SCOTUS threw some pretty big roadblocks in the way of his various prosecutions, almost certainly pushing any further trials past November, and also improving his odds of acquittal, if those cases are even tried.
Most notably, yesterday's SCOTUS ruling, along with one from last week striking down the DoJ's definition of obstruction, throw a big wrench into the insurrection case in Washington. It's not dead, but Judge Tanya Chutkan will have to go through everything, decide what charges are going to be kicked, and then decide what behaviors are "official conduct" and what behaviors are "unofficial conduct." This will take a fair bit of time, and all of her decisions will be appealed up the ladder. Note that it is possible that Special Counsel Jack Smith will file a new, slimmed-down indictment in order to speed up the process.
The Georgia case is affected, but probably less than you might think. Much of what Trump did in that case took place after he left office, and even the things that he did while in office—calling a state-level official to insist he "find" votes—is very, very far afield from a president's constitutional prerogatives. The United States is a federal system, remember, and conduct of elections is a state-level concern. The one way in which the Georgia case is affected is that some of the evidence that Fulton County DA Fani Willis planned to use may be inadmissible.
The Florida case could be affected. Trump's legal team has already filed a motion asking for the entire case to be dismissed, because the classified documents he took were first packed up while he was still president. Ipso facto, per Team Trump's reasoning, the entire chain of events was covered by the new definition of presidential immunity. This is a dubious argument—first that packaging documents is an official act, second that it remained an official act even after Trump was no longer official. The fact is that the holding of classified material only became criminal when the former president refused to return the documents, at which point his possession of them became unequivocally not inadvertent. That refusal took place long after he was out of office. All of this said, Aileen Cannon is the judge in this case, and you never know what she will do.
There is some tiny chance the criminal fraud case could be affected by the SCOTUS ruling. Trump's attorneys have already filed a motion to overturn Trump's conviction, based on the fact that some of the checks Michael Cohen received were signed while Trump was sitting in the Oval Office. This sounds like grasping at straws to us, and Judge Juan Merchan is no Aileen Cannon.
Beyond the impact on his pending legal cases, the other bit of "good news" for Trump, and this is grim, is that if he is indeed returned to the White House, there will be even fewer restraints on an administration that was already set to be wildly unrestrained. In case there was any doubt on this point, Trump adviser Chris LaCivita was on Twitter implying that Trump critics would be rounded up, while Trump himself is threatening to set up a televised military tribunal so he can try Liz Cheney for treason.
Bad News for Trump
While the "good news for Trump" angle got much play yesterday, it's not all good news for him. In fact, the bag is more than a little mixed.
To start, as we note above, none of his trials are likely to go forward before November. So, when people cast ballots, he'll only be a 34-times-convicted felon. However, that doesn't mean that there won't be hearings. Chutkan, in particular, is going to be going through the evidence against Trump, and she's likely going to be doing it at the height of the campaign. CNN legal analysts Norman Eisen, E. Danya Perry and Joshua Kolb describe this as a "mini-trial," and they point out that the coverage of it may be nearly as damaging to Trump as a real trial, since it will constantly remind voters of what he tried to do.
More importantly, when it comes to electoral politics, the Trump trials have always been just a means to an end. The end, of course, is defeating Trump and keeping him from regaining the powers of the presidency. Our guess is that beating Trump got a little easier yesterday. Consider these three statements:
- There's a plan from a group called the Heritage Foundation that would give Trump a plan for making the U.S. into a
dictatorship
- If Trump is reelected, he'll pick an attorney general who will look the other way while Trump does what he wants
- The Supreme Court just gave Trump king-like power if he's reelected
All of these point in the same direction. But our suspicion is that, for low-information voters and for fence-sitters, #3 is much more salient than the first two. That's one branch of government—one that is supposed to be a key guardrail—saying to another branch: "Eh, do what you want." Couple that with Dobbs, which Biden has already done, as we note above, and "the lawless Trump, enabled by the lawless Supreme Court" is a pretty powerful campaign theme. Given that Republicans in Congress certainly won't hold Trump accountable (see, impeachments, both of them), a person who says "Well, I like tax cuts and the Trump economy and doing something about immigration, and the rest of the government will rein in the crazy stuff" cannot really fool themselves anymore that they can have the good with there being a decent chance of avoiding the bad.
This basic line of thinking has already occurred to Biden, of course. In the speech yesterday where he blasted the decision, he decreed:
The American people must decide whether Donald Trump's assault on our democracy on Jan. 6 makes him unfit for public office in the highest office in the land. The American people must decide if Trump's embrace of violence, to preserve his power, is acceptable. Perhaps most importantly, the American people must decide if they want to trust the ... presidency to Donald Trump.
Incidentally, there were a bunch more "Biden may have to step aside" and "Biden's abysmal debate performance raises doubts" yesterday morning. By the afternoon, they had nearly all been pushed aside by stories about the Supreme Court.
Thoughts from Readers
We gave you six thoughts from legal scholars and six thoughts from politicians. So, how about six thoughts from readers?A.H. in Newberg, OR: Justice John Roberts—"Balls and strikes," my fu**ing a**, what bull**it!!!!!
S.B. in Warsaw, Poland: Biden "blasts" and "deplores" the president-is-king ruling but we all know he's not going to do anything about it. I'm not saying he should officially order the assassination of Clarence Thomas and Samuel Alito now that it's apparently legal, but the Democrats' impotence is clearly one of the reasons the U.S. is where it is, with one party systematically dismantling the rule of law and making good progress on the way to fascism, the other scared to death that any assertive action might alienate wealthy donors. And the big money will always prefer juicier profits to democracy, even if some plutocrats find Trumpism aesthetically displeasing.
It's depressing to witness the Democrats' strategy reduced to repeating ad nauseam "he lies" and "we're not as bad as he is." But after all, Joe Biden is a man of his word and he promised that nothing would fundamentally change under his watch. Good night and good luck, America.
L.S. in Greensboro, NC: It will never happen, but...
Biden should immediately order the Secret Service to take Trump into custody, strip him of his U.S. citizenship, confiscate his passport, and deport him to Russia, or if Putin won't have him, to Eastern Ukraine.
Then he should do the same with the two clearly corrupt Supreme Court justices, Clarence Thomas and Samuel Alito, along with John Roberts, who authored this horrible opinion.
All of this would clearly be within his official duties to protect the nation from corrupt authoritarians bent on destroying it.
E.T.C. in Kapolei, HI: The Supreme Court, in its wisdom, gave Joe Biden a magnificent gift—immunity from question for his official acts, criminal or not. As the Constitution says of senators and representatives, "...[He] shall not be questioned in any other place."
The president swears an oath on taking office to, among other things, "protect and defend the Constitution of the United States." Donald J. Trump, in his past and current words and deeds, has shown himself to be the most serious threat to that Constitution in the history of our nation. More so than the British of 1812; more so than the Confederates of the 1860s; more so than the Axis powers of the 1930s. His actions and words are more egregious because he attacks from within. He arouses the gullible among us to action against the very soul of our nation by his mendacious words and deeds. Donald Trump is a clear and present danger to our democracy and to our Constitution.
For that reason it is right and proper that President Biden take immediate and official presidential action to arrest this treasonous miscreant and incarcerate him in our prison at Guantanamo for life under the care of our military. There he can "rage, rage against the dying of the light," as, no doubt, did Napoleon on Saint Helena island.
K.J. in Nottingham, England, UK: I weep for America this morning. What on earth can be done?
J.C. in Binan, Laguna, Philippines: Can we all just agree this July 4th to celebrate that the British won?
There you go: six-six-six.
The Bottom Line
If there was one lesson after the debate, it was "wait for the dust to settle." Patience is called for here; the full electoral implications of this decision won't be clear for weeks or more, while the full legal implications won't be clear for years or (in the case of future sleazy presidents) decades.
That said, we think it is very possible that while yesterday's news was very good for Donald Trump on the legal front, it will hurt him politically, by making the danger he represents much more real. (Z)
Today's Presidential Polls
Not to be a broken record, but you can't predict what's going to happen when only 86% of respondents are backing one of the two major-party candidates. New Hampshire hasn't had a double-digit non-major-party candidate since the first Ross Perot election. (Z)
| State | Joe Biden | Donald Trump | Start | End | Pollster |
| New Hampshire | 42% | 44% | Jun 28 | Jun 29 | St. Anselm Coll. |
Click on a state name for a graph of its polling history.
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