Supreme Court decision on presidential immunity: It could be worse, but not by much

Well, at least they didn’t hold a ceremony at the Supreme Court to present Donald Trump with a crown and a scepter, but that is about all they didn’t do.

We’ll get to the effect of this massive expansion of presidential powers on Trump’s prosecution in a moment, but taken as a whole, this ruling, in Trump vs. The United States, is a disaster.  The Supreme Court today, in a decision written by Chief Justice Roberts and joined by the court’s other five Republican-appointed radical conservatives, found that presidents enjoy absolute immunity from prosecution for “official acts” taken while in office, but no immunity for “unofficial acts” a president might take.  The court left the determination as to what is official and unofficial up to the president, first, and whoever controls the Supreme Court second.  But in this case, they’re one in the same.

Forget strict construction and originalism.  This is a lop-sided, wrong-headed reading of the Constitution.  Article II, which sets out presidential powers, requirements for office, duties while holding office, and manner of forced removal from office, does not contain the words “immunity” or “official acts” anywhere in its language.  Rather than deciding with finality the issue raised in Trump vs The United States, this court instead sets up an entirely new legal battle. The court sent the question of which charges involve official acts and which don’t back to the court handling Trump’s federal case in Washington D.C., overseen by Judge Tanya Chutkan.  The decision appears to exclude from prosecution any of Trump’s dealings with the Department of Justice, which would apply to at least one charge involving Trump’s interactions with Jeffrey Clark, who was attempting to get the DOJ to send a letter to the Secretary of State in Georgia falsely claiming that the department had found fraud in the Georgia presidential election.  Joe Klein, in his excellent Substack, “Sanity Clause,” put it thusly, referring to the obviously illegal-on-its-face “fake electors” scheme: “If you’re President of the United States, it’s okay to talk to your Attorney General about overthrowing the duly elected government of the United States.”

Judge Chutkan will now have to hold an evidentiary hearing or hearings over the other charges in the indictment of Trump to determine whether any of them involve official acts.  Trump’s lawyers will make the case that Trump was acting officially at all times.  The prosecution will make the opposite case, probably pointing out that the charge against Trump for conspiring to get fake electors appointed in battleground states in an attempt to disrupt the counting and certification of electoral ballots is not an official act, as by law, presidents have no role in that process.

Another charge in the indictment that will be challenged is the one alleging that Trump attempted to strong-arm his vice president, Mike Pence, into fixing the electoral vote on January 6.  Roberts’ decision sends the determination of whether that was an official act down to the lower court, but Roberts points out in the decision that contact between the president and vice president about his role in presiding over the Senate to cast a tie-breaking vote would be an official act.  Trump’s attempt to force Pence to alter the electoral college vote clearly falls outside that comparison, however.

In one of the most outrageous sections of his ruling, Justice Roberts found that pretty much anything Donald Trump said on Jan. 6, including his tweets, falls within the “penumbra” of official acts.  So, if a president opens his mouth and a penumbra of lies surrounding other lies spews forth, as often happens with Donald Trump, all of those lies are protected as “official acts.” 

The Chief Justice, who decides when the Supreme Court hears cases, when they rule, and who writes the opinions, delayed the decision in this case until the very last minute of the court’s term.  This will ensure that the case will not come to trial before the election, or perhaps not even before the end of the year, giving Trump the advantage of not facing a federal trial while he is running for office.  If Trump wins in November, he will of course have his Department of Justice dismiss all the charges against him, citing this ruling in their decision.

Judge Chutkan already ruled against Trump when he made a motion to dismiss the case based on his assertion of “absolute immunity” from prosecution for anything he did while he was president.  She will have to listen anew to Trump’s lawyers argue why this decision absolves their client from any criminal charges brought against him, but it seems unlikely that she will rule that the charges involving fake electors or Trump’s attempts to get state legislators and officials to overturn the election results in their states were official acts. 

So, it seems likely that at least some of the federal charges against Trump in the Jan. 6 case in Washington will withstand challenges by the Trump team.  Trump will thus probably be tried on the charges at some point in the future, unless of course, he wins in November.  The delay built into the Supreme Court’s handling of this case has already delivered a victory to Trump, which he bragged about today on his social media site: “BIG WIN FOR OUR CONSTITUTION AND DEMOCRACY. PROUD TO BE AN AMERICAN!"

Whatever happens with the charges against Trump, this decision by the Supreme Court will unleash future presidents to do pretty much anything they want while in office by declaring that what they did was an “official act.”  Selling an ambassadorship?  Official act.  In her dissent, Justice Sotomayor brought up the notorious internment of Japanese Americans during World War II as an example of what might be considered an “official act” under this decision.  The rounding up and internment of Japanese Americans was done by executive order.  The Supreme Court upheld the legality of the internment of Japanese Americans in a series of decisions, including Korematsu v. United States.  Chief Justice Roberts, in a majority opinion in the case of Trump v. Hawaii, wrote that “The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority.”

You will note that Roberts specified “U.S. citizens” in his finding that the internment of Japanese-Americans was
“unlawful.”  Based on his royalist ruling on presidential power, I’ll give you one guess how he would rule if Trump wins the presidency and carries out his threat to round up, inter, and deport thousands of migrants living in this country.  Such an incredible and terrible plan as that one would be found by the Trump court to be an “official act” of which they would approve by the same margin as the decision today, six fascist justices against three justices in dissent, attempting to uphold what’s left of our democracy.

This Supreme Court’s decision will allow Trump free rein to enrich himself as president, jail his enemies, and put migrants in concentration camps.  During the George Floyd demonstrations, Trump asked General Mark Milley, “Can't you just shoot them, just shoot them in the legs or something?”

John Roberts and the rest of the radicals on the Supreme Court just issued a decision that would make that suggestion legal as an “official act” by the president.  What if Trump is elected and decides to ask his Attorney General – likely to be a hand-puppet picked by Leonard Leo of the Federalist Society – “Can’t we just arrest those people at MSNBC and CNN and throw them in jail?” 

Well, if Donald Trump becomes president again, doing exactly that would be an “official act” under what we may as well call the Roberts Royal Rules of Order making Donald Trump “officially” beyond the law.

 I’m not a praying man, but Lord, please help us if Donald Trump wins the presidency in November.