Today’s wonderfully named decision “Trump v. United States” on Presidential immunity for political acts is a little more complicated than the reporting I’ve seen would indicate. It is true that the President has no immunity for “non-official acts” — at least as determined by this Supreme Court, which is both inconsistent and partisan to the point where conceivably Trump and Biden could do the same exact thing and the former would be judged to have been acting “officially” and Biden “non-officially,” thus representing a final victory against accountability for Republicans but not Democrats. But then it gets a bit more complicated. Here’s the money quote from the Court’s own summary:
Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts.
https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
My first reaction to this paragraph was that couching this result in the separation of government powers seemed like a twisted joke, as it arguably does no such thing. President Biden has been hemmed down time and again by court orders that he not act in various areas, notably environmental protections, or risk violating the law. Well, deciding whether to respect a court order or declare an emergency that might (or might not) supersede it surely seems like an official act! So this opinion might be read to confer the ability to ignore judicial orders — as rejected 221 years ago in the germinal case of Marbury vs. Madison — to the judicial draft (at least for Presidents with whom the court did not personally agree. That show no respect for the doctrine of separation of powers between co-equal branches of the federal government.
Fortunately — at least I think so — the court’s analysis doesn’t stop there. It divides immunity for official acts into two distinct (ok, perhaps distinct) categories: (1) those within his conclusive and preclusive constitutional authority and (2) all other official acts. For the latter, the President has only “presumptive” immunity — and the nature of presumptions in law is that they can be rebutted. The question becomes “when and how.” And that, of course becomes an issue to do the one argument that can’t really be argued to the court — that they themselves have become illegitimate due to their partisanship and inconsistency. Thus, they may always judge Trump as generally within bounds and Biden as only presumptively so — such that the final execution of a Presidential order or action might well be stayed for as long as it takes to wind through the political system. As we’ve seen, that that can take years and years!
As the two Democratic authors of written dissents — a superlative one for the ages by Justice Sotomayor and a trenchant but shorter one by Justice Jackson — conclude, the majority is disingenuous in how far it is opening the door to Presidential immunity from critical conduct. They claim to have left room for prosecution in the area I identify above where they say that the immunity is rebuttably presumptive. Two problems with that:
- (1) as Justice Barrett. who concurred partially with a dissent from the part of the Chief Justice’s ruling opinion that states that actual evidence of the underlying crime cannot be submitted to the jury (!), notes that if a President wants evidence to be excluded, they can seek a protective order under existing process. This common sense notion is as of today not part of the law of presidential immunity.
- (2) One of the two Democratic dissenters notes that as soon as the majority opens the door for the presumption for immunity to be limited by rebuttal evidence, it closes the door on the possibility with additional parts of the motion.
So as of this point, my tentative conclusion is that yes, the President can ignore a court order and get away with it — but only if the majority of the Justices agree with the result. That’s what we end up with when our Supreme Court becomes our Supremely Political Court.
I’m going to add more and more to this piece as time permits this week for deeper reading of the various decisions, but I want to open it up to commentary now. This is NOT an Open Thread. (Presumptively.)
Couldn’t Biden order seal team 6 to kill Trump for treason?
It’s not like Republicans wouldn’t find a compelling replacement after he’d done so. Under this ruling they would have to find that enforcing treason was outside of any core of his extended powers for him to be prosecuted for murder over it. But Democrats generally might be largely exterminated in the subsequent civil unrest. Imagine what they would do with a real legitimate grievance!
That concern is why the Republic is about to fall to fascism.
I’m hoping that losing a few more elections will make them bored with fascism, although unfortunately Europe is practically bathing in it.
“Losing” being the operative word.
They won’t need to have any elections at the rate we are going.
Go read US v Nixon. No absolute immunity from judicial process. People need to slow down.
Did you read the opinions? They address that. Under this decision, easy cases remain easy. But it’s also easy to take an easy case and make it more hard.
Greg, I’m not panicking about the opinion. Not saying you are but from the DPOc and beyond, folks are propagandising the outcome as if they have given the President carte blanche. Let me sum it up, the opinion confirms that “the President is not about the law.”
https://youtu.be/dMt8qCl5fPk (Tricky dicky pontificates about executive privilege)
Something I wrote In 1991. I’ve got one on the homeless in DTLA too.
Untitled
Spring 1991
Look about you
Stand guard
Democracy’s degeneration
is upon us
Collapsing cycles continue
Hitler, Napoleon, Ceasar
New World Order
Over Now
First World Police State
Oppression
Nine Men
Tailor the Bill of Rights
their hammers fall
and the masses lose control
Faltering First Amendment interpretations upheld
womens’ rights – controversial conversation piece
Big brother is back
beware or be blacklisted
the only thing we must fear
Ourselves
apathy stricken Americans
question the authority, before
the authority questions you
as they attempt to weed
out the unwanted
or atleast round them up
in
metropolitan ghettoes
with crumbling infrastructures
and the desensitizing box
fulfills its function
holds the constituents’ minds captive
just shows them what they want to see
Superbowl mentality
The oligarchy is allowed to prosper
by the turnout of 30%
break out of the rut
question authority
vote no on the counterrevolution
don’t give up your rights
quickly captialism and democracy
smell of fresh sickled wheat
44 years ago the U.S. government
stalked out Communist party members
now, it propagandizes the benefits of socialism.
I believe you are saying that, under the Court’s decision, a president who refuses to enforce a court order against himself would be immune from prosecution for that official act, and I believe that is correct. In fact, it appears they would be absolutely immune because the conduct would not just be an official act but would be an exercise of core constitutional authority. Of course, we are assuming that such conduct is a crime, and I’m not sure about that, but in any case it doesn’t seem to matter.
But on this particular point, I don’t think the Court’s decision changes anything, practically speaking. Courts have always had to rely on the executive to enforce their orders and there has always been a worry that an order against the president might not be enforced by the president. During the Court’s deliberations in Marybury v. Madison, Jefferson made clear that if the Court ordered him to deliver Marbury’s judicial commission, he would not do it. Chief Justice Marshall cleverly avoided a potential constitutional crisis by deciding instead that the Court had no authority to decide the case because the law that gave the Supreme Court jurisdiction in such cases was unconstitutional.
There was a similar concern when the Court ordered Nixon to turn over the tapes. What if he refused? But he did not refuse, probably because he knew it was over by then and a refusal would only have made matters worse. But what if he had? What recourse is there in such cases? Impeachment and removal, of course. Also, the political process. Seemingly those have generally worked as deterrents, though not for Trump — and perhaps not even for Jefferson.
How is an incumbent office holder explicitly acting as a candidate on behalf of his reelection campaign an official act?
Have you read the opinion?
The most obvious route is that the President has the obligation under the Take Care Clause of the Constitution to ensure that the laws of the nation are “faithfully executed” — an obligation Trump has left in shreds, but never mind that — and that obligation does not go away when executing the law (such as making sure that the law has been followed in a federal election) “happens” to benefit his interests.
That argument in this context is, of course, arrant bullshit — but how convincing do you think it has to be to convince Thomas, Alito, and the gang to go along with it? The only way to override the Court is is with impeachment and removal — or arguably a Constitutional Amendment, which John Roberts’s decisions on districting have made impossible for something of this nature.
The question of which President and party could get away with how much is the overriding one in this election. That’s not a problem for me; it might be for you.
What I see is a court majority composed of Christian Nationalists/Opus Dei religious whacks, who, unsurprisingly, prefer authoritarianism to democracy. At this point getting rid of the electoral college is the only thing that might save us (along with RCV).
Look at al the Paleo-Catholics on their following in the proud footsteps of Scalia. What’s funny is how their judicial activism is so selective.
I agree with both you and Zenger here. And I also consider it extremely unlikely — although less so than abolishing the Senate (in its present form.)
I went and looked at Cunningham’s blogs just now (Anaheim Observer & OC “Independent”) because I always need a foil or nemesis, and Dan C rarely puts up anything even slightly interesting. I was figuring since it’s the 4th of July Matt would have his usual sanctimonious, lazy reprint of the Declaration of Independence, and sure enough. But this time he gave it a little intro, which includes…
“The principles of the Declaration and the legitimacy of the Revolution are under unprecedented domestic assault from…”
“Right on,” I thought for a nanosecond, the Kleptoscribe is rightly worried about the manifold threats to democracy and the Constitution augured by the likely re-election of the Ochre Abomination, the unquestioning subservience to him from pretty much the entire Grand Old Party and 30% of the citizenry, and above all the recent Supreme Court decisions aimed at allowing him and his successors to be unaccountable lawless tyrants. I thought he might be losing sleep, like me, over Project 2025. Welcome to the struggle, Matt!
PERO NO, I finished reading his sentence:
“…under unprecedented domestic assault from the Woke Left.”
The Woke Left? It’s the Woke Left that’s assaulting the principles of the Declaration and the legitimacy of the American Revolution? Klepto-sphincter says what?
BEHOOVE away… https://www.anaheimobserver.com/2024/07/04/happy-4th-of-july-248-years-of-independence-liberty-and-constitutional-government/
It’s partly lack of decent education; and the rest is laziness and “intellectual dishonesty.”