A July 4 Immunity Fete
Terry H. Schwadron
July 4, 2024
OK, the Supreme Court has given us a souped-up new presidential immunity framework, and we have two activist, if aging presidential candidates. For our Fourth of July holiday celebrating democracy, let’s take the new toy out for a spin.
What will be the practical effects, besides endless delay until Donald Trump can blow up the criminal charges he faces now.
Joe Biden made clear in an announcement on the day of the decision that he doesn’t want additional power, at least not the kind that would allow him to evade criminal charges. Indeed, he said he sees the Supreme Court decision as ill-advised, adopted the stance of the dissenting liberal justices, and said he feared for democracy in a system that puts the president — himself in this case — beyond the scrutiny of the law. As with 44 of the 45 previous presidents, Biden makes clear that his interests are about governing, not about pushing the reach of criminal law, even refusing to protect his son from federal prosecution and conviction.
Donald Trump, the first American president to face actual criminal charges in multiple jurisdictions, hailed the decision, saying that it would protect the kind of decision-making that needs to go on the in the White House — a novel legal argument. Indeed, through his lawyers, he made immediate moves to delay, cancel, or otherwise challenge his sentencing in a New York conviction and to walk away from other federal and state charges.
On the same day, Trump chose to threaten former Rep. Lynn Cheney and others who had served on the House Special Committee to Investigate Jan. 6 with criminal charges that included “treason” for asking probing questions about his own role in the events leading to the Capitol riot.
In its considered and much delayed majority decision, Chief Justice John G. Roberts Jr. went out of his legal way to pooh-pooh the outrageous hypotheticals of a president using the trappings of office to shield himself in, say, ordering an assassination of a political rival or taking a bribe to issue a pardon.
But before the day was out, here was Trump threatening arrest for Biden, his own former Vice President Mike Pence and lots of other officials who have criticized him — with absence of substantial credible evidence notwithstanding. Filing false charges can result in criminal charges, including defamation, perjury, or filing a false police report. I’m just wondering if Roberts might have had just a tinge of buyer’s remorse for creating a purely legalistic framework that was falling apart on its day of issuance.
House Probes of Biden?
Indeed, following the logic of the Supreme Court that “official” acts by a president — possibly even a former president — should be presumed to be beyond the reach of criminal law, one wonders what the House Republican-led oversight and judiciary committees will do about their endless, but fruitless investigations into “the Biden crime family.”
Hours before the Supreme Court decision, the House Judiciary Committee filed a lawsuit against Attorney General Merrick Garland to obtain raw interview footage of Special Counsel Robert Hur interviewing Biden. Hur chose not to pursue criminal charges against Biden, in part, he said, because Biden came across as a forgetful, but likeable old man. Congress has transcripts, but these Republicans want the video likely to distribute for campaign purposes.
Skipping the fact that 50 million of us watched last week as Biden stumbled badly at his debate with Trump, indelibly stamping the too-old-to-serve imprint on all of us, whatever Biden did in mishandling classified was part of “official” duties — and now presumed to be off-limits. So too with asking questions or soliciting private evidence about Biden’s intent.
As for unrelated probes into Biden’s contacts overseas that may have proved useful to his son, Hunter, the obvious reading of this new Supreme Court doctrine is that only Hunter should be under the investigative gun.
But there’s been no cancellation this week of these House attempts to go after Biden. Apparently, despite all the highfalutin Supreme Court largess towards untoward conduct in and around the White House is aimed at helping Trump, not Biden.
Policy vs. Profit
Most of what Trump and Biden want to do is commit the country to policies, of course, rather than to scheme about breaking the law. But both regularly have found their policies challenged in court over constitutionality or appropriateness, and both have had to rely on executive orders as Congress has proved too deadlocked to resolve matters.
In Biden’s case, his immigration policies have not only brought court challenges, but impeachment threats from the likes of Rep. Marjorie Taylor Green, R-Ga., and others. That is impeachment as in “high crimes and misdemeanors.” The Supreme Court did not wipe away impeachment investigations — politics of a split Congress does that by itself — but those “referrals” to the Justice Department to consider criminal charges must be wiped out now, right?
Trump’s own policy proposals — see Agenda47 or Project 2025 — skirt close to the edge of current law.
Proposals to set up vast migrant camps and deport millions of undocumented people, invoking a century-old Insurrection Act to deploy military to go after civilian targets all require a very liberalized view of the law. Firing tens of thousands of civil servants for replacements who meet pre-vetted loyalty oaths would require controversial interpretation of administrative law. Pardoning thousands arrested for Jan. 6 behaviors might be legally sustainable but will create lots of justice headaches.
These policy changes, which will be controversial and legally unstable, generally do not involve criminal matters. But they do create an atmosphere that comes pretty close to dictatorship, particularly with a malleable Supreme Court and a moribund Congress. Trump already has vowed to go after journalists and anyone opposing his ideas.
With legal protection in place, there is nothing to stop Trump from falsifying or rewriting tax records or for launching tax probes and prosecutions against political enemies, from misusing campaign funds for personal reason, for his own mishandling of classified information and the like. He could sell pardons as he would golden sneakers and make deals for foreign business ventures by his family, apparently without a viable question.
Maybe the good news in a Trump victory would be he would no longer need to win an election at any cost — including violating whatever state or federal laws might apply. The watchers would be looking only at issues involving his own personal financial gain.
We have any number of very practical applications of the new imperial presidency to unfurl. Amid the campaign boasts and lies — which are not criminal — whether we choose to look at any of them is an open question.
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