‘A King Above the Law’
Terry H. Schwadron
July 2, 2024
No matter how you try to slice it, the Supreme Court just gave Donald Trump a pass for the Jan. 6 violence, his Stop the Steal schemes, and the plotting behind it all.
Whatever gloss is put on it, the decision will be perceived as a partisan move by justices Trump appointed or supported.
Though the language of the 6–3 decision along ideological lines obscures the detail in difficult-to-determine “official” and “unofficial” acts, the practical effects of the delays in trying outstanding criminal counts against Trump for his role in seeking to stay in office all but guarantees there will be no trial before November.
If he wins, Trump will have any charges dismissed. The decision guaranteed much more difficulty in ever prosecuting a president or even former president.
Just in time for the Fourth of July, the Supremes handed the case back to U.S. District Court Judge Tanya Chutkan with the unenviable job of determining what exactly was “official” presidential action in all of scheming without defining how to do that. The conservative Supreme Court said only that in making the determinations, she “may not inquire into the President’s motives.” What prosecutors may not do is admit testimony or private records that would invite a jury to scrutinize the president’s motivations for the act and second-guess its propriety.
Obviously, any decision in the lower court will be appealed anew.
The central point from the Supreme Court majority: Presidents have “absolute” immunity for clearly official acts, but no immunity for unofficial acts. In that respect, the decision should be seen as fundamentally changing the power of the presidency itself, far beyond affecting Trump alone.
Common sense says that elections and campaigns are unofficial acts, but that’s not fine enough slicing for a conservative majority appearing to lean heavily into redefining law, precedent, U.S. history, and an obvious need for accountability.
As Justice Sonia Sotomayor said in dissent, the decision “makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. Relying on little more than its own misguided wisdom about the need for “bold and unhesitating action” by the President . . . the Court gives former President Trump all the immunity he asked for and more.”
Her dissent added, In every use of official power, the President is now a king above the law,”
Broadening the Protection
Let’s be clear: The justices agree that Trump had a central role in many of the substantive behaviors described in the indictment in the case. The question they ask is whether all the actions are “official.” For unofficial acts, there is no immunity.
Chief Justice John G. Roberts Jr. wrote, “The Court concludes that the separation of powers principles explicated in the Court’s precedent necessitate at least a presumptive immunity for a President’s acts within the outer perimeter of his official responsibility.”
According to the decision, for Trump to order actions by an acting attorney general are “official,” for example, but interactions with the vice president to persuade him to stop the Electoral College count may or may not be official. By my reading, then, the classified documents, a different case, would appear to be about unofficial acts, like packing up, but former president Trump makes the same claim there.
Last week, the former Uvalde, Tex. police chief was indicted for sitting on his hands while children and teachers were endangered by a shooter. Why is Trump sitting on his hands during Jan. 6 different, other than in appointing three judges who now ruled in his favor?
Along with a decision last week to throw out some Justice Department criminal charges against rioters from Jan. 6, 2021, over its interpretation of whether obstruction of official proceedings relied on interference with physical evidence, the Supreme Court majority has aligned itself directly with limits on accountability for the remarkable attempt to overthrow democratic traditions of peaceful transfer of power and the sanctity of elections. And, in both cases, Justices Clarence Thomas and Samuel Alito, whose families have been tied publicly to alignment with Trumpist causes, continued to vote without considering recusal.
Presidents cannot be indicted based on conduct for which they are immune, said the majority decision. Still, it added, “the President is not above the law.”
But what this court just said and what it has just done has left a wide gap that feels, smells, and exudes an odor of hypocrisy.
This is the same Supreme Court that erected an eight-foot fence after its 2022 abortion decision to protect itself from protesters, Apparently, they don’t think the Capitol is due an accountability for a Trump-inspired riot.
##