Presidents Shouldn't Be Above the Law
Why the Supreme Court's recent ruling granting Trump far-reaching immunity matters.
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On Monday, the Supreme Court capped off its bombshell term with an attack on the rule of law. In Trump v. United States, the Court articulated a broad new law of immunity for ex-presidents that will significantly impede accountability and invite corruption. While some immunity for a president is a good idea, the breadth of immunity created by the Court goes too far, and we may soon feel the consequences.
In 2023, when a grand jury convened by Special Counsel Jack Smith charged Trump with conspiring to overturn the 2020 election, the ex-president and his lawyers responded by claiming that a president has absolute immunity for all actions taken while in office. This was the central issue that we needed an answer to in Trump v. United States. In answering it, the Court laid out a three-part framework for approaching claims of immunity.
First, it ruled that for actions in the core zone of the presidency’s constitutional powers, ex-presidents have absolute immunity from prosecution. This would cover things like the veto power, the pardon power, and the power of recognizing foreign governments.Â
Second, for actions in which presidents exercise powers according to law, but which do not fall within core constitutional powers, the Court ruled that ex-presidents have presumptive immunity. This is not an absolute immunity, but a functional one, and it means they are immune if their actions are determined to be official. The Court described this zone in expansive language.
Third, for purely private actions, the Court ruled that there is no immunity. Because the distinction between official and unofficial action is a factual one, the Supreme Court remanded Trump’s case back to lower courts for further hearings, in order to decide whether his alleged actions regarding the 2020 election were official or not. But this almost certainly delayed the case until after the November election. If Trump wins, he’ll end the case upon taking office in January.
Why is the Court’s judgment worrying?
On its face, the basic distinction between official and unofficial acts makes sense. Other countries’ courts, notably the UK House of Lords in the prosecution of Chilean ex-dictator Augusto Pinochet, have made a similar distinction between official and unofficial acts. But the UK notably declined to create any category of absolute immunity. The Supreme Court therefore articulated a broader standard than recognized in international law.
The Supreme Court also acknowledged that some of Trump’s alleged actions may not merit immunity. The president has no constitutional role in communicating with state officials about the election process, for example, and so potentially could be subject to judicial process. But the Court also stated that in communicating with federal officials or the public, the president is presumptively immune. Thus, Smith’s allegations concerning Trump pressuring Mike Pence to overturn the election result, or inciting the January 6 mob, cannot be part of the basis of a prosecution.
Another problem arises with what the Supreme Court said in remanding the case back to lower court. In trying to draw a line between official and unofficial conduct, the Court instructed, lower court judges cannot inquire into presidential motives. Nor can official acts be considered in evidence in inquiries into the motives for allegedly unofficial conduct. This means that investigating presidential misconduct will be much more difficult in the future, as any evidence relating to official acts will be inadmissible.
Under these standards, how far could a president go without facing punishment? The dissenting opinion by Justice Sotomayor made much of the threat that a president may be able to sell presidential pardons without facing consequences. This is hardly a far-fetched scenario. Remember Bill Clinton’s pardon of Marc Rich, whose wife had made substantial donations to Clinton charities and to Hillary’s Senate campaign? The opinion in Trump v. United States practically invites such behavior.
Abuse of the pardon power is hardly the worst of it, though, since a pardon is an individual-level action that rarely if ever impacts the national interest. Suppose, hypothetically, that a future president invokes his commander-in-chief power to cut off arms to Ukraine, and then recognizes Russian sovereignty over the Donbas, all in open exchange for a large deposit to his business bank accounts. Since these actions clearly fall within the core of the constitutional power of the presidency, they would be immune from legal investigation or punishment. Similarly, under the Court’s standards, the president could order his Attorney General to engage in specific prosecutions of his political enemies, or else be fired. The Court has essentially authored a how-to-guide for the use of public power for private gain, allowing the president to abuse their powers.
This all raises the stakes of presidential elections and the importance of character as a key quality in choosing candidates. But does it mean the end of the Republic?
Probably not. Ultimately, the rule of law depends not on one man, but the actions of those around the president. Presidential immunity does not extend to his supporters, who might still be prosecuted for obeying a patently illegal order, even if the leader issuing it can maintain immunity. Our system of federalism is a protector of liberty in this regard. Even if a president now enjoys broad personal immunity from both federal and state prosecutions, his helpers are potentially punishable in 51 different jurisdictions, so there is the ever-present chance of local accountability. Other consequences of misconduct can follow as well. Defendants who are lawyers can lose their ability to practice law: The provisional disbarment by the California Bar of Trump lawyer John Eastman is an example of a serious downstream consequence that can affect the calculus of sycophants.
The rule of law is a complex ideal that depends in large part on a public perception that no one is above the law. If a president seeks to overturn the system of government, or otherwise abuse their powers, it will now be even more critical for those around him to think twice before going along. What is needed for such people is a cold hard calculus, in which the probability of successfully disrupting democracy is lower than that of facing consequences before the courts or other authorities later on. In the wake of Trump v. United States, the calculus of the people in a president’s inner circle may mean the difference between the success and failure of a constitutional coup.
Tom Ginsburg is the Leo Spitz Professor of International Law at the University of Chicago.
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This is a respectable opinion piece, but to me it is not a persuasive one.
A more persuasive argument would have more fully thought through the consequences for an opposite majority opinion -- something the Chief Justice's majority opinion did, and the dissents really, did not.
The first thing to point out is that the fact that international law is different fails to be persuasive because there isn't an international constitution. And other countries with constitutions don't have ours. The Court very carefully considered what our constitution says, and how it is structured, and while both dissents see things differently, I think the fact that the president is constitutionally the only branch of government assigned to one person is overwhelmingly important to this case.
The Court's discussion of the problem with presidential motives follows from that. As a singular focus of power, the President is a natural focus of prosecutors, and speculating about presidential motives is one of the biggest problems the Court sees, since motives are so obscure, complicated and multifactorial. This is just the thing partisans -- including prosecutorial partisans -- can and do take advantage of in an enormous number of situations including, in part, the Trump prosecution in this case. It doesn't take any imagination to wonder if a Republican led Department of Justice would file revenge cases against President Biden, since that's just what the Republicans are promising, and already trying to do. The dissents were not troubled by this Hatfields and McCoys scenario, but I certainly am.
Taking motive off the table has its downside, since a guilty mind (called mens rea in the law) is an essential element of criminal behavior. Yes, that means that only the most extreme presidential actions, where motive is obvious, could be considered for post-presidential allegations. But it shouldn't be forgotten that the reason we've never faced this question before is that only one President ever has so obviously and publicly engaged in conduct that might meet the Court's bar.
Prof. Ginsberg is fair in including the staff of the President (or his co-conspirators) would also be in the hot seat, and that is as it should be. But what about the offending President?
The parade of horribles that keeps getting brought out is a truly scary phantasm, but if the majority of Americans again choose Trump or someone as bad. . . well, the Constitution doesn't tell anyone who to vote for.
More important to me, if one of Prof. Ginsberg's scenarios were to take place again, note that as the conduct gets worse, the chance of impeachment get better. As we've learned, impeachment of the President is a political exercise, but even partisan politics will have its limits. A President unilaterally cutting off arms to Ukraine, recognizing Russia's claim to the Donbas, and taking money for it? I'd think just the first two would be enough even for today's GOP.
I might be wrong about that, but I don't think I'm wrong about how far outside the lines set by the Court nearly all elected presidents would stray.
Finally, it's worthwhile to consider this case does not stand alone. The Court this term clarified (a bit) the problems with the actions Donald Trump took, and it's true that it recognized an immunity that had never been imagined because it never needed to be. But the Court also cut back on many of the excesses of the Executive's authority over his regulatory power, at least as big a story. That looks The Court this term was very interested in the Constitution's balance of powers overall, with the Executive Branch as Exhibit A. That, I think, is by far the most important context for understanding this term. The Court is developing a better understanding of presidential power because Congress has so throughly abandoned its job, which the Founders thought was so central they put it first in the Constitution. Nature isn't the only thing that abhors a vacuum, and as long as Congress continues its juvenile political hijinks, the Executive has taken over Job One. The Court's job is to keep an eye on that kind of thing, and has done it well this term.
Oh no the sky is falling! Will Biden now have Trump assassinated?