What is Past is Prologue
“When the president does it, that means that it is not illegal”. A strong proponent of the theory of the unitary executive, those were the words of Richard Nixon to David Frost in part 3 of the famed Frost/Nixon interviews in 1977. At the time those words were uttered by the then-disgraced former President, his comment and the very notion that nothing the president does is illegal was emphatically met with public outrage, viewed as it should, coming on the heels of Nixon’s resignation in 1974 as an attempt by Mr. Nixon to defend his actions and place himself above the law. The outrage was fairly universal, including most members of Mr. Nixon’s political party. The reasons for the outrage were obvious as it was generally understood by the nation that the president was bound by his oath to uphold and defend the Constitution and to carry out his official duties as prescribed but limited by the Constitution. It was inconceivable to the nation, as it was to the founders and all that followed, that a president would use his office, under the guise of supposed “official conduct”, to engage in actions involving, among others, a criminal conspiracy to affect the outcome of an election and to remain in power. Despite his claim, Nixon nevertheless understood that his claim of absolute immunity for his actions while president, would not withstand trial before the Senate, and relinquished his office rather than face the wrath of the Senate and the nation.
Despite this history and, in a broader sense, the nation’s history, Nixon’s claim to absolute immunity for actions taken while in office…the idea that he and any president is above the law and beyond reproach has found support from the nation’s highest court in yesterday’s ruling granting Donald Trump immunity from prosecution for actions taken while in office. Suggesting that “the President would be chilled from taking the ‘bold and unhesitatingly action’ required of an independent Executive, the Court held that all actions taken by a president in his official capacity, regardless of their character and intent, are entitled a so-called, “presumptive privilege”, meaning that every action he takes, again regardless of its character and intent, are presumed to be privileged and thus protected unless the government, in prosecuting claims of criminal conduct, can prove beyond a reasonable doubt that the actions were not taken in his official capacity lest the President be “chilled from taking the bold and unhesitating action required of his office, writing, “At a minimum, the President must therefore 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.” This is, to say the least, a high bar for any prosecutor seeking to charge a former president with crimes committed while in office. Applying this contrivance to the current situation involving Donald Trump, Jack Smith will now have to prove that the Trump indictment would not have been an “intrusion on the authority and function [of the President’s] duty to protect the integrity of the election process. While the evidence establishing Trump’s participation in a vast criminal conspiracy to subvert the election would appear to be overwhelming, the Supreme Court, has nevertheless cast a very large safety net under much of Trump’s conduct in the weeks between Election Day and January 6th.
That safety net, in the view of Justice Roberts, writing for the Court, is apparently not wide enough. Further concerned about the impact of a president having to contemplate whether his actions are being carried out in his official capacity and thus protected, nevertheless stretches the rubber band of protection further, holding that: “Taking into account these competing considerations, we conclude that the separation of powers principles explicated in our precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility. Such an immunity is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution.” (Emphasis added). What this means is that even if a president’s actions are not within the ambit of those spelled out in the Constitution, they would nevertheless be entitled to a presumption of privilege. According to the Court, then, Trump’s conduct in speaking to his followers on January 6th and exhorting them to attack the Capitol and “stop the steal” could be protected as occurring at the outer perimeter of his official responsibilities, writing, “some Presidential conduct—for example, speaking to and on behalf of the American people, see Trump v. Hawaii, 585 U. S. 667, 701 (2018) certainly can qualify as official even when not obviously connected to a particular constitutional or statutory provision. For those reasons, the immunity we have recognized extends to the “outer perimeter” of the President’s official responsibilities, covering actions so long as they are “not manifestly or palpably beyond [his] authority.”
The Court, in trying to explain itself, spent considerable time explaining that immunity does not extend to unofficial conduct, a question not raised by any party (because it is so obvious as to require no argument) and not before the Court, perhaps as a pretext for further yet insulating the President (i.e. Trump) from exposure to criminal prosecution, holding that in ferreting out official from unofficial conduct, noting that, “courts may not inquire into the President’s motives. Such a “highly intrusive” inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose.”
So to be clear, virtually everything the president does is protected, whether that conduct is criminal or not, extending the protection to official actions (i.e. actions prescribed and proscribed by the Constitution) and to actions that may not quite fit within the Constitutional constraints…those occurring at the outer reaches of supposed duties though the Court offers no real explanation for where the duties of the office end and those outside the “outer perimeter” begin. What it did make clear, however, is that the Courts may not ask the former president what he had in mind when he took the action. Arguably, then, Jack Smith, in either the DC or Florida prosecution cannot inquire about Trump’s motives in stealing classified documents or riling up the crowd on January 6th.
Richard Nixon must be rolling over in his grave. Had these guys been on the court when he was considering his options in 1974, you can be sure he would have persevered, confident that every action he took in the lead up to the 1972 election was beyond reproach.
The entire decision…the very notion that a president is ostensibly beyond reproach save for certain limited circumstances…serves to throw way 260 years of the nation’s traditions and understanding of the role to be played by its chief executive. The last thing that Hamilton and Madison had in mind in crafting the Federalist Papers was re-establishinig a monarchy in this country. The same can be said for the founders meeting at the Constitutional Convention to adopt the framework for the country’s governance. Above all else, the country was founded on a belief that the government should serve the people and that the Chief Executive, while a central figure to that government, was nevertheless bound to act honorably, in the country’s best interests and within the limits imposed by the then-newly adopted Constitution. The Roberts court has thrown all of that history…all of that purpose in founding the nation…out the window.
While Roberts claims in closing his decision that the ruling is not intended to serve one person or one party, but to lay forth a framework for presidential behavior going forward, it is simply not true if one were to consider the broader context for the decision as it is clear that the decision was written with Donald Trump in mind and to perpetuate a form of governance advocating by those pressing for his election. What makes this particularly apt is the fact that Roberts makes no effort to place the ruling in the context of the facts underlying the charges against Trump. Missing from Roberts’ version of the events following the election in November 2020 is any mention whatsoever that Trump and his allies filed lawsuits in more than 20 states claiming that there had been election fraud that resulted in Biden’s election or, more significantly that all of those claims were rejected because they lacked evidence of election fraud or that Trump knew that all of those claims had been rejected yet he persisted in pressing his claims and engaged in the conduct seeking to interfere with the election by the time he began to pressure the Acting AG, conduct which the Court has deemed official and thus entitled to absolute immunity. As is so often the case with this Court the conservative majority invariably omits facts from its decisions which it feels to be contrary to the narrative it creates in its ideologically driven decisions. This approach is manifest not only in its omission of key facts but in its analysis of history and precedent as it relates to the question of Presidential immunity mal-applying numerous instances in which the Federalist papers and the constitutional convention as well as the treatment of the question by the Supreme Court itself since the founding to again choose facts or interpretations of history to suit its narrative even if that application is not only not supportive of its argument but contrary to the history it claims to rely upon.
To be clear, again, the expansive nature of this ruling is required because history is being challenged by a criminal who during his presidency and since has railed against the constraints imposed on him by the Constitution. The nation, at least until 2016, did not require a court to explain what was and was not a criminal act whether taken during or after the term in office. While questions of presidential immunity have been litigated before each eventually resolved on the basis that no one is above the law and that if a president commits a crime while in office or thereafter, he is subject to prosecution in order to protect the integrity of the Constitution and the government it enabled. That this expansion of immunity is being undertaken for the benefit of a man charged with what amount to acts of treason against the United States should tell you all you need to know about the integrity of the Court and possibly the future of the country should Donald Trump regain the presidency.
It is critical to understanding why the Court has fashioned this degree of protection for Donald Trump to understand that Project 2025, the 900 plus page blueprint for re-structing the entire federal government, makes the concept of the unitary executive a core element of its plan. The unitary executive, as you may know, places the entire executive branch under the control of the president alone to do what he pleases with the various agencies of which the executive is composed including the Departments of Justice, Defense, Homeland Security, Energy, Health and Human Services among others. Project 2025 does not shy away from its plan to install loyalists to every position in every one of the executive departments in order to avoid the resistance to Trump’s most malignant tendencies while in office. The plan strips the Congress and the Courts of many of its functions, allowing, for example, the President to appoint staffers without first going to the Senate for approval. It is critical to the idea of a unitary executive that he not be encumbered with concern that his actions may not fit within constitutional constraints.
The Roberts decision is a critical first step toward bringing to life an all-powerful chief executive, immune from prosecution and ostensibly above reproach from the Courts.
Justice Sotomayor issued a dissent which is a tour de force take down of the majority decision that is worth the read. In her initial response, she wrote, “First, the majority creates absolute immunity for the President’s exercise of “core constitutional powers.” Ante, at 6. This holding is unnecessary on the facts of the indictment, and the majority’s attempt to apply it to the facts expands the concept of core powers beyond any recognizable bounds. In any event, it is quickly eclipsed by the second move, which is to create expansive immunity for all “official act[s].” Ante, at 14. Whether described as presumptive or absolute, under the majority’s rule, a President’s use of any official power for any purpose, even the most corrupt, is immune from prosecution. That is just as bad as it sounds, and it is baseless. Finally, the majority declares that evidence concerning acts for which the President is immune can play no role in any criminal prosecution against him. See ante, at 30–32. That holding, which will prevent the Government from using a President’s official acts to prove knowledge or intent in prosecuting private offenses, is nonsensical.”
I would encourage you to find and read the rest of the dissent to better understand why she concludes with the chilling words, perhaps unprecedented in the annals of the Supreme Court, “With fear for our democracy, I dissent”.