Tuesday Talk*: Catastrophe, Confusion or Hysteria? Or All?

It’s unclear whether the reaction to the decision is the most inflamed ever, but it’s certainly close enough that it would not be hyperbolic to say the 5-1-3 decision in Trump v. United States has revealed a depth of outrage both in the Court’s minority dissenters and the anti-Trump public that is rarely seen. Stoking this outrage, Justice Sonia Sotomayor, with whom Justice Kagan and Jackson joined, “with fear for our democracy,” wrote:

The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.

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.

Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.

For a Supreme Court justice to write such a scathing condemnation of the majority opinion is unheard of. Everyone says no one is above the law, even though that platitude is more than a bit simplistic, failing to take into account myriad immunities, absolute or qualified, provided by law, whether statute, common or case, from judges to prosecutors to cops to congressfolx in session. The point is that they must be able to perform their functions without fear of prosecution influencing their decisions.

So what’s changed? Well, Trump, obviously. The Supreme Court majority wrote a decision to be applied to presidents, past, present and future. The objection to it is Trump, that he may get away with “it,” by which I mean all the “its” already charged, convicted and more. Worse yet, should he be re-elected, there may be no fear of post-presidency repercussions for whatever crimes he dreams up in his twisted grasp of power.

To many outside the MAGA heartland, this is a fiasco of Trumpian proportions. But is it? Does this make the president a “king,” as Justice Sotomayor writes?

Before Trump, no president has ever been prosecuted for conduct committed during the presidency. Nixon almost certainly would have but for President Jerry Ford’s pardon. But now that Pandora’s box has been opened, the possibility of post-presidential prosecution going forward looms large, whether as political retaliation or the fevered hatred of partisans. There was no need to address these issues before Trump, but now that it’s on the table for both Trump and the “Biden Crime Family,” not to mention every president hereafter, the need for parameters became manifest.

The majority crafted a three tier paradigm.

  • Core presidential functions: Absolute immunity.
  • Official acts: Presumptive immunity.
  • Unofficial acts: No immunity.

The core presidential functions are those powers the Constitution vests in the president alone, such as pardon,** appointment of ambassadors and cabinet secretaries, and commander-in-chief. It’s the inclusion of C-i-C that gives rise to the Seal Team 6 assassination hypothetical. Although, as Iowa prawf Andy Grewel argues, if a president sends Seal Team 6 to assassinate his political rival, post-presidential prosecution is the least of our problems.

The presumption of immunity is rebuttable, the burden being on the prosecution to show that it does not pose a “threat of intrusion on the authority and functions of the Executive Branch.” Of course, there is also a rebuttable presumption of innocence, which hasn’t done much to impair the government’s ability to convict. Whether the president calls something official or not has absolutely nothing to do with where it fits within this paradigm.

On top of this triple threat, the majority layered some additional restrictions. If conduct was absolutely immune, it could also not be used as evidence for conduct that was not immune from prosecution. In her concurrence, which is actually a partial dissent as well, Justice Barrett rejects this as unjustifiable and untenable.

Another restriction is that evidence of presidential motive is inadmissible, precluding the government from looking behind the act to show venal purpose. Such evidence is usually key to distinguishing good from evil purposes, turning an act from permissible to criminal.

As Just Security, they’ve created a flow chart to represent the decision.

In the past, there was tacit immunity for presidents to make decisions that would involve conduct that could be prosecuted as criminal. An example would be President Obama’s killing of United States citizens in a targeted drone strike. He made the call with the best interests of the nation he served, as he saw it, in mind. If others disagreed with his call, he could have been prosecuted for murder. But he wasn’t because it was understood that the president would not be prosecuted for making the hard decisions required of his office. Did that make President Obama a king, above the law, or a president, empowered to make the choices demanded of the office even when they might be criminal in other contexts.

This was a decision for presidents, all presidents, and not just Trump. Was it right or wrong? Was it sound or unsound? Is this decision a national catastrophe or a necessary trade-off to enable the presidency to function? Does this decision clarify or confuse? Is it the end of the world as we know it?

*Tuesday Talk rules apply, but, FFS, focus.

**Does the president have the power to pardon really bad dudes like, oh, Crazy Joe Arpaio? Well yes, but he had that power before. But what if the president takes a bribe for a pardon? Maybe. After all, paying off the president is how most ambassadors get their post. Is this just a bug in the system where the cure is worse than the disease?

18 thoughts on “Tuesday Talk*: Catastrophe, Confusion or Hysteria? Or All?

  1. orthodoc

    This whole brouhaha reflects the inconsistency of a certain left-leaning conceptualization of criminal penalties.
    As I learned at this site, criminal penalties are imposed to promote specific and general deterrence; to incapacitate and rehabilitate the offender; to provide some restitution; and to inflict some retribution.
    Among these, retribution is generally the least legitimate aim for those with a progressive perspective.
    Yet as noted above it seems that the great caterwauling (eg, “Today the United States Supreme Court overthrew the central premise of American democracy” – Heather Cox Richardson) stems from a profound disappointment that maybe the bad orange man might now, horrors, escape Ceausescu’s fate.
    I’d far prefer that both sides recognize that the only true motivator for presidential virtue is a concern for history’s judgement. Such consideration requires both moral virtue and a functioning neocortex. That is to say, for disparate reasons, today’s candidates’ motivation for virtue is low, and not really affected by the SCOTUS decision.

  2. PML

    It appears to me to be a lot of hoopla about nothing. The SC just validated what every other president has kind of known. We now know that we cannot prosecute Biden for Killing 13 servicemembers by his withdrawal from Afghanistan or Obama for killing terrorist, or Bush for ordering the now deemed unlawful interrogations we practiced in the black sites. We also know know that when Biden pardons Hunter there is nothing that can be done about it.

    I don’t see how anything much has changed

  3. DaveL

    Overall, I found Sotomayor’s response overwrought, bordering on hysterical. But I think the Court went too far in its blanket ban on considering Presidential motives, and on its exclusion of official acts for the purpose of evidence.
    I was sympathetic to the DC Circuit’s separation of official acts between discretionary and ministerial duties, and I wish the Court had worked that distinction into this ruling somehow.

    1. Hal

      “Overall, I found Sotomayor’s response overwrought, bordering on hysterical. But I think the Court went too far in its blanket ban on considering Presidential motives, and on its exclusion of official acts for the purpose of evidence.”

      That pretty much sums up my view/ concerns.

  4. phv3773

    And if the President sold a nomination to the Supreme Court for, say, $5 million?

    I was thinking maybe Biden should test out his new powers, perhaps by ordering the Secret Service to keep Trump from getting to one of his rallies, or having the Army surround the Supreme Court building and not let anyone in or out for a day.

    1. Kirk Taylor

      Military orders of that type would test a whole different type of law and I believe military commanders would be highly likely to disobey those orders.
      The fact that the military leadership is well aware of the limits of what constitutes lawful orders makes Soto’s hysteria even more ridiculous. There is near zero chance the order to assassinate a political rival would be obeyed.
      There are a lot more checks and balances than just criminal law.

      1. phv3773

        I agree, and I think there is no group more supportive of the Constitution than the officers of the military.

        But in both this decision and the Chevron decision, SCOTUS landed the government in chaos without evident concern for the consequences, and I would not mind at all if they feel some of the pain.

      2. Charlie O

        Based on this decision, there is no longer any such thing as an unlawful order.

        The right wing of SCOTUS is populated with frauds. They spew drivel about “originalism” when it suits them, and then this decision, which has no basis in the US Constitution. If fact, the framers did not want this exact thing to happen.

        Time for drastic measure to remove the orange doofus from the count.

  5. Miles

    The commentary seems obsessed with how this impacts Trump, without demonstrating any awareness or concern about how any and every president in a divided country would be subject to prosecution by someone for something, real or imagined, in the usual exercise of presidential powers.

    But the rejection of motive (intent) as a factor and use of immunized conduct as evidence seems to go too far and make otherwise appropriate prosecution far more burdensome than it should be. So all of the above.

  6. Kirk Taylor

    One of the many problems in Israel is that Netanyahu needs to stay in power due to impending prosecutions, though I’m not sure how many would fall under this opinion, were he our President.
    He has plenty of motivation to extend the military emergency as long as possible, and thus, no motivation to end it without a resounding victory he could use politically to stay in power.
    One of the things I like about the U.S. system is how this rarely comes up whereas post power prosecutions of politicians is more common elsewhere.
    Obviously term limits help more with our Presidents, but the presumed immunity doesn’t hurt.

  7. B. McLeod

    I took the whole “SEAL Team 6” thing as her veiled suggestion to Biden, since the lawfare appears likely insufficient to fix the election at this point. As a construction of the majority opinion, it is fairly unhinged.

  8. abwman

    To me, the most troublesome thing about this and several other decisions this term is the increasingly acerbic tone of opposing opinions. The hyperbolic hysteria of Sotomayor’s dissents serves no purpose other than to inflame the emotional reactions of her tribe. Her choices of words are extremely injudicious, and she is setting a poor example for Justice Jackson. Alito has a similar tendency. If the Court continues to move in this direction, it will exacerbate the polarized opinions of the populace (and is intended to do so), who look for any trigger to insist the sky is falling. On a positive note, it is somewhat encouraging to see Justice Barrett’s willingness to go her own way on several occasions now, and even to see Justice Jackson’s willingness in the Fischer case to join in a decision with the conservative wing.

  9. Mark Dwyer

    The most troublesome thing to me is that the Court seems unconscious of what may well be the case: that the President sought to upend the most fundamental portions of the Constitution to steal a second term. Perhaps that document is a self-defeating “suicide pact” after all, if it immunizes such conduct.

  10. PK

    It’s a shit test the Court came up with, like always. We already had the fine words “conclusive and preclusive” yet now they add “core” to contrast the apparent perimeter of presumptive immunity. It was smart to cut the word “penumbra” from the final draft, at least.

    Likewise, whether something poses a danger of intrusion on the executive’s authority is going to boil down to “I know it when I see it”, as the Court didn’t bother clarifying a factual analysis, or otherwise provide guidance to the poor lower court. Could they just please draw some lines and do some actual deciding?

    Except what they actually do decide sucks. Stay out of evidentiary and procedural issues that aren’t fully briefed yet, please? I don’t think I’m asking much.

    In other words, the Court failed to effectively prevent the torrent of prosecutions that it is so worried will impede POTUS from acting freely.

    The dissents go well off the rails, as is plain enough to see. If POTUS authorizes the murder of a political rival, we will have war. The survivors can decide the law thereafter.

  11. Mike V.

    “…revealed a depth of outrage both in the Court’s minority dissenters and the anti-Trump public that is rarely seen.”

    Rarely seen on the Court but sadly common for the anti-Trump commentariat and public for at least the past 7 years. Political rhetoric has been increasingly strident and polarizing for a couple of decades now. I worry and if the talking heads, politicians and keyboard warriors don’t learn to self-moderate we aren’t going to like the nation we find ourselves in. It’s almost like nearly half the country use 1984 as a How-To manual and the other half are reading the Turner Diaries.

  12. Bryan Burroughs

    Roberts was so concerned with being farsighted that he went completely myopic. It’s a strange argument indeed that the Constitution envisions an Executive branch that is able to usurp the Constitution without legal restraint or remedy. Maybe the dissents were a bit strident, but the loopholes that this opinion sets up are insane. In order to avoid any criminal liability, all a President has to do is make his co-conspirators advisers in his administration.
    Roberts focused solely on a hypothetical and ignored actual reality. And his hypothetical was forced anyway. Presidents are rarely acting on the spur of the moment, yet he likens their decision making to that of a cop on the street. Most admin decisions take place in duscussions over days or weeks. It hardly seems an impediment to ask that a President consider over such a time span if his actions are actually legal, too.

    1. Drew Conlin

      I’m only responding Mr. Burroughs because yours shouldn’t be the last one. I’m probably guilty of ad hominem but your post doesn’t sit well with me.


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