The Immunity Decision

[Res Ipsa]

i read the majority decision and Barret's concurrence and dissent. I haven't read the dissenting opinions or any analysis or commentary. I hope some constitutional scholars see something I missed. TL/DR:

1. Two people won: Donald Trump and Joe Biden. Trump won a guaranteed postponement of his January 6 trial until long after the election. The immunity issues must be resolved before the case can proceed. The District Court will have to apply the Court's new analysis, and Trump will have the right to an immediate appeal to the Court of Appeals and its likely that the Supreme Court will take a second look. Trump also won absolute approval for his transformation of the DOJ into a political weapon. The Court held that, whatever the President does in his "core" official duties, it is legal. 100% legal. No ifs, ands or buts. And directing the DOJ when it comes to who to prosecute and not prosecute are within those core official duties. The President's intent is irrelevant. So, even if the President acts with 100% corrupt intent, he has a get out of jail free card as long as the the acts are with the sphere of core official duties. Moreover, communications that fall within those core official duties cannot be used to criminally prosecute the president ever, even if the acts being prosecuted are outside the sphere of core official duties. Justice Thomas even went outside the issues that the court took up on appeal and sent Aileen Cannnon an engraved invitation to throw out the documents case on the grounds that the Special Prosecutor doesn't have the the Constitutional authority to prosecute.

Biden won because he gets the benefit of the same immunity that Trump gets.

2. The rest of us -- including the framers -- lost. Bigly. As of today, we are all completely at the mercy of a "Justice" Department that can be driven 100% by the President's personal animosity or pure political partisanship. The aspiration of an independent DOJ is dead. The only check on these presidential powers is impeachment, which has been rendered a nullity because of today's partisanship. The majority opinion embraces the very thing that the framers warned was an existential threat to the republic -- partisanship.

3. The notion that the President is not above the law lost. Bigly. The President is absolutely above the law when acting within his core official duties.

4. The Unitary Executive won.

I have no problem at all with the fact that the decision means that any trial of Trump will not occur before the election. This was a case of first impression and the underlying opinions contained precious little analysis of the elements and boundaries of presidential immunity. I think that getting the issue of presidential immunity right is far more important than when Trump is tried.

I think the absolute immunity for actions within the core official duties is a mistake that will eventually land this opinion in the dumpster of Supreme Court mistakes. Preventing the use of evidence from within this core to support a case based on corrupt actions outside of the core official duties is, in my opinion, a terrible blunder. The MAGA's hysterical, overhyped bleating about 'Lawfare" will become a fact if Trump or any other Republican becomes President. But, it will become a reality in the next few presidential terms anyway. If you create a safe space for corruption, it will flourish there. Hell, it is very hard to beat back corruption under any circumstances.

in my opinion, Supreme Court has significantly altered the balance of power among the branches of government. It has increased its own power vis a vis the other two branches. It has also weakened Congress and strengthened the Executive, which is not something we would expect from a conservative Court. Right now, Congressional MAGAS are happy with the results because they see themselves as "winning." But that's because they are doing very little in the way of governing. Should they decide to actually govern, they may be shocked when they realize how much power Congress has lost.

[Manetho]

It obvious that the court is trying to delay Trump's trials further. Smith asked in December to skip the DC circuit and have the Supreme Court hear this appeal immediately to get this nonsensical appeal shot down immediately; they refused. Then, after the DC circuit writes a thorough opinion shooting it down, they agree to hear it seven weeks down the road, making a verdict before the election virtually impossible? It's blatant sabotage of the justice system.

This court is simply disgusting.

I don't think that's what's going on. It is very rare for the Court to take a case before it has been ruled on by the Court of Appeals. There's a good reason for that, especially on a case of first impression. The Court of Appeals allows the parties to more thoroughly brief the relevant issues, which gives the Supremes a better look at the issues than a District Court Motion would provide. Court of Appeals opinions also tend to be more detailed and thorough than District Court opinions.

The thing about making dire predictions is that when they turn out to be right, you at least have the satisfaction of saying "I told you so." It may be rude, but in dire circumstances, I'll take satisfaction where I can get it.

This decision is actually even worse than I expected, but I was right that the conservative justices are not acting in good faith.

[Manetho]

Looking beyond the fate of this particular prosecution, the long-term consequences of today’s decision are stark. The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. This new official-acts immunity now “lies about like a loaded weapon” for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation. Korematsu v. United States, 323 U. S. 214, 246 (1944) (Jackson, J., dissenting). The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold on to power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.

Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.

Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.

...With fear for our democracy, I dissent.

That's an astounding dissent. It's hard to imagine a harsher one.

Note that the majority didn't have qualms about handing that kind of immunity to Biden, even though they're clearly at odds with his policies. They know Biden won't abuse that power, and they don't care if Trump does.

[Res Ipsa]

I don't think that's what's going on. It is very rare for the Court to take a case before it has been ruled on by the Court of Appeals. There's a good reason for that, especially on a case of first impression. The Court of Appeals allows the parties to more thoroughly brief the relevant issues, which gives the Supremes a better look at the issues than a District Court Motion would provide. Court of Appeals opinions also tend to be more detailed and thorough than District Court opinions.

The thing about making dire predictions is that when they turn out to be right, you at least have the satisfaction of saying "I told you so." It may be rude, but in dire circumstances, I'll take satisfaction where I can get it.

This decision is actually even worse than I expected, but I was right that the conservative justices are not acting in good faith.

It's worse than I expected as well. I did not expect the holding that the President's intent is irrelevant in the sphere of his core initial duties. I also did not expect the blanket exclusion of evidence of activities that take place within that sphere in cases based on actions outside that sphere. But that doesn't mean that the Court's objective was to delay the trial for political reasons. (Except for Thomas, whose concurrence based on an issue that the Court did not take up for review is, in my opinion, inexcusable.")

I don't think that it is unreasonable to have concluded that some of the crimes alleged against Trump potentially involved conduct that fall within presidential immunity. Even if the Court had qualified that immunity in some way, a remand to the District Court would be necessary because neither the District Court nor the Court of Appeals conducted an analysis that allowed for some of the conduct to be protected by immunity. That's exactly what the Supreme Court is supposed to do.

I also don't find the general approach to the immunity issue surprising or objectionable: strong immunity around core official functions (like the power to pardon, the veto power, etc.), weaker immunity around the periphery of official functions, and no immunity for non-official actions. But I think it was a mistake to make the "core" as big as it did and to give the President a free pass to conspire to commit prosecutable crimes against him as long as the conspiracy is kept within the executive branch.

The Court itself is a stellar example of how corruption will fester where unchecked power is allowed to flourish. Maybe it shouldn't be a surprise that it gave the executive branch a sphere of unaccountability similar to the one it has claimed for itself.

The Majority Opinion closes with a reference to our first President:

In his Farewell Address, George Washington reminded the Nation that “a Government of as much vigour as is consistent with the perfect security of Liberty is indispensable.” 35 Writings of George Washington 226 (J. Fitzpatrick ed. 1940). A government “too feeble to withstand the enterprises of faction,” he warned, could lead to the “frightful despotism” of “alternate domination of one faction over another, sharpened by the spirit of revenge.” Id., at 226–227. And the way to avoid that cycle, he explained, was to ensure that government powers remained “properly distributed and adjusted.” Id., at 226.

In this decision, the court had to balance two different considerations: protecting a sitting president from politically motivated revenge by the next president without giving the sitting President the power to act corruptly by abusing his authority over the DOJ. in my opinion, it succeeded on the first while whiffing on the second. By neglecting the second consideration, I fear that it has only fueled the feared cycle of revenge instead of working against it.

[Moksha]

We all have lost, since there will be no brakes on the upcoming Trump rule.

[huckelberry]

I was expecting as plausibly reasonable a protection of presidential actions as commander-in-chief for actions related to a foreign threat or dangerous influence.

WTF is this shsss?

[Manetho]

WTF is this shsss?

Really all that needs to be said.

[Res Ipsa]

Looking beyond the fate of this particular prosecution, the long-term consequences of today’s decision are stark. The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. This new official-acts immunity now “lies about like a loaded weapon” for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation. Korematsu v. United States, 323 U. S. 214, 246 (1944) (Jackson, J., dissenting). The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold on to power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.

Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.

Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.

...With fear for our democracy, I dissent.

That's an astounding dissent. It's hard to imagine a harsher one.

Note that the majority didn't have qualms about handing that kind of immunity to Biden, even though they're clearly at odds with his policies. They know Biden won't abuse that power, and they don't care if Trump does.

I dunno, I've read lots of harsh dissents over the years. The notion that each of the three branches of Government has a sphere of action over which the other two branches have no authority is hardly radical. To some extent, Sotomyor's dissent is both over the top and mischaracterizes the majority opinion. The language you quoted ignores the majority's distinction between core official acts (absolute immunity) and peripheral official acts (rebuttable presumption of immunity). Absolute immunity does not apply to all "official acts."

Part of the problem I see is that the only people represented in this suit are a former President and the current President (through the DOJ). The rest of us aren't parties, and so the option simply ignores the consequences of the opinion for the rest of us. But that kind of consideration is part of the Court's job -- looking at the future results of a decision. I expect that the history of this decision will come to resemble death by a thousand cuts until a future court kills it out of mercy or confines it to its facts. But until future cases present the Court with the consequences of its decision on the rest of us, the potential for abuse is pretty scary. Today, the R looks scarier than the D, but I don't expect that to continue.

[Res Ipsa]

I was expecting as plausibly reasonable a protection of presidential actions as commander-in-chief for actions related to a foreign threat or dangerous influence.

WTF is this shsss?

I think actions as Commander in Chief in a declared war would be a reasonable approach. But I think "dangerous influence" raises all kinds of red flags. in the extreme portions of right wing politics that drive many of today's R positions (check out the Claremont Institute and its proponents), people who vote for Democrats are a "dangerous influence" to the extent that they should not be considered "American" at all. We already have state governments that target the rights of non-binary people and people who think structural racism/sexism are problems that the government should address as "dangerous influences." I'm loathe to give the President the right to declare a subset of Americas as "dangerous influences" and to use that designation as a justification to imprison or assassinate American citizens. That's McCarthyism on steroids. in my opinion, the outer edge of immunity for any branch should be powers the Constitution expressly grants to that branch.

[huckelberry]

I was expecting as plausibly reasonable a protection of presidential actions as commander-in-chief for actions related to a foreign threat or dangerous influence.

WTF is this shsss?

I think actions as Commander in Chief in a declared war would be a reasonable approach. But I think "dangerous influence" raises all kinds of red flags. in the extreme portions of right wing politics that drive many of today's R positions (check out the Claremont Institute and its proponents), people who vote for Democrats are a "dangerous influence" to the extent that they should not be considered "American" at all. We already have state governments that target the rights of non-binary people and people who think structural racism/sexism are problems that the government should address as "dangerous influences." I'm loathe to give the President the right to declare a subset of Americas as "dangerous influences" and to use that designation as a justification to imprison or assassinate American citizens. That's McCarthyism on steroids. in my opinion, the outer edge of immunity for any branch should be powers the Constitution expressly grants to that branch.

Ouch, Res Ipsa, you hit square my lack of precision. I should have specified dangerous influence from foreign entities not just any body such as an unpleasant neighbor.

Thank you for your needed clarification. However you touch a real puzzle by specifying declared war. It has been important to respond to real threats prior to a war declaration. This is tricky and problematic.

my memory, aging, said WWII was last time US declared war. I checked Wikipedia, it agreed WWII was the last war declaration.