The last two weeks have been a political rollercoaster. After debate night, I was certain Biden would hang on (and wrote a piece saying as much). But the news cycle refused to bend to Biden, and the ABC interview persuaded me that perhaps he really was going to get the boot; so I wrote that with my friend Elise Labott from Cosmopolitics. Now, I just don’t know. But while we sit around and play “will he stay or will he go,” it’s worth taking a few minutes to dig into the Supreme Court’s decision on presidential immunity. The Biden gaga story drove it from the headlines, but it merits a sober conversation.
We had one of our two favoritest (goodest?) lawyers on the pod — National Review’s Andy McCarthy this time — to talk about the implication of the Court’s decision that the Constitution grants presidents wide immunity from prosecution for actions taken in the course of their executive duties.
Before diving into the decision, let’s set the stage with some of the worst elements of 21st-century politics. The first is the judicialization of everything. (I thought I was rather clever coining this term, but no, it’s been around since the 1850s.) As one of my Georgetown students sweetly explained to me (pre-Dobbs), it’s best that everything ends up in the courts, because judges are the only public figures we can trust. Safe to say he doesn’t think that anymore, but that sentiment has animated American politics for decades now. Don’t like the President? Take him to court. Don’t like his laws? Take him to court. The President doesn’t like the laws? He breaks them and challenges his opponents to take him to court (see Biden, student loans). Everyone is suing everyone, all the time.
Second is the politicization of everything. As Andy says in the pod, in the olden days an elected district attorney would have been horrified at the notion of running on a promise of prosecuting the president of the United States. No more: Both Alvin Bragg and NY Attorney General Letitia James were explicit in their aims. Now, you may say in response that we’ve never had a president like Donald Trump. Perhaps not exactly, no. But we’ve had plenty of presidents who believed they were above the law, not to speak of those who thought they could boink anything in a skirt.
Fundamentally, in its immunity decision, the Court took off the table the question of whether a president could be prosecuted for his actions as president. That means no, no one can sue any president for, say, bombing Iran. Or deploying the National Guard in the face of rioting. And it will also preclude…. wait for it…. Donald Trump from prosecuting Joe Biden for his own transgressions in office. (Didn’t think of that, did you?) And that’s a good thing; we want our presidents to have a certain latitude.
What the Court left fuzzy — weirdly — was the question of whether Donald Trump specifically was acting within those bounds when he asked the Vice President to interfere in the counting of electors. Or when he asked state officials to gin up “missing” votes for him. In the pod, we agree this is a strange position for the Supreme Court to take.
Then again, critics of the Court took even stranger positions. No, it would not be lawful for the President to deploy Seal Team Six to assassinate his enemies. Suggesting it is moronic. The act itself is unlawful, and not found among the Constitutional prerogatives of our Commander in Chief. There’s a thornier question, however: What if the President orders an American citizen assassinated by drone? Barack Obama did that. Was it ok? The Justice Department said yes. Read their memo here.
To put this decision another way, most normal Americans would prefer the President of the United States not to be burdened by constant lawfare challenging his right to do his job as prescribed. Sure, many elite Americans believe such privileges should not apply to Donald Trump, and Republicans presidents more generally. But isn’t that the problem?
One final note on the Court’s recent decisions. Prior to the immunity ruling, the Court overturned a precedent — Chevron — that had for many years been construed to privilege the administrative state and its “experts” in rule-making. The only reason I raise this decision is that in tossing Chevron to the ash heap of history, where it belonged, the Court stripped from the president — any president — the right to use the administrative state to circumvent the role of the legislature and the will of the people. In short, dumping Chevron hacked away at the unconstrained power of the Executive.
One would have thought that in denying the president the right to make rules about every aspect of American life regardless of Congress or the states, Trump-obsessives would have been thrilled to know that if elected, his hands will be tied in many ways. But no, they are more concerned that he is going to use Seal Team Six to kill Stormy Daniels. Or something. That is the nature of discourse in the United States right now. SMH.
HIGHLIGHTS
Why are so many seeing this decision as one about Trump and not the larger topic of presidential immunity?
AM: I think because of the charged politics of all this, everybody keeps looking at it as a Trump case. And I thought the court was very clear during oral argument in particular, Gorsuch famously said, "We're writing for the ages." What they were concerned about most I think is the institution of the presidency, rather than how all of this particularly affects Trump. And it's unfortunate that all the political people who reacted to it, because the things that they say about it, you can't expect that most people are going to sit down and read a hundred-page legal opinion, so they're going to rely on a lot of people in politics to bumper sticker what the case is about. And I think unfortunately they're obsessed with Trump and what the court is dealing with here is how to protect not only the presidency itself, but the equilibrium among the three branches of government.
How did the founding fathers originally intend to check the limits of presidential power?
AM: The framers are very aware of the awesome powers that they're vesting in the presidency and in order to check those powers so that they're not abused in a way that could be ruinous to the country, they vest Congress with a number of ways to check presidential power. And it would've been inconceivable to the framers that the main check on presidential power would become federal prosecutors who actually answer to the President in the chain of command.
So I think what the court is trying to wrestle with is you have a constitutional structure that has one set of assumptions, and then you have modern practice, which is, I frankly think it's an unhealthy practice because it's atrophied Congress's muscles to deal with presidential misconduct. But the system is not designed for prosecutors to check the President and the court is trying to figure out a way to allow that to happen to the extent it might be appropriate to happen, but at the same time protect the framework of the Constitution.
Is the Supreme Court upset with how this case was brought to them?
AM: Bottom line here, I think what the Court was most, angry is the wrong word, but I think most resentful about, was that this thing was done in a big rush on an accelerated schedule and what the court thought was the most important inquiry, namely this distinction between official acts and private acts, no one even tried to do it or even grapple with what rules should apply in trying to make these distinctions. Because Smith, and the court doesn't come out and say this, but it thrums through the whole opinion, Smith tried to get this case to trial based on the election calendar rather than what was right to do justice in a case where you're indicting a former President for the first time and making precedents that could cause damage to the presidency as an institution.
What do you think is wrong in Justice Sotomayor's dissent?
AM: One of the things I thought was wrong about Justice Sotomayor's dissent is that she talks about granting the President immunity. And I don't think the court is granting anything. I think the court is interpreting the system as it exists, and it's not empowering Congress more than Congress is already empowered. I think what it's trying to say is that the way that this system is structured, Congress is supposed to be doing the heavy lifting here, but the court doesn't say, and they're emphatic about this, even though the commentary would not inform you about this.
You’ve said that you disagree with how Chief Justice Roberts discusses Trump’s fake electors plot. Why do you think Roberts thinks that might be considered an “official act” of the presidency?
AM: So I think what the court decided they wanted to do was they didn't want to break off any part of this. They wanted to send the whole thing back and tell the court to do all this fact-finding. But the reason I go off on this, Marc, is I think what they're saying is that where its official activity, that Congress is the right place to check the President, but they're not saying everything's official activity. And I think they muddy the waters a little bit about something that's private. To me anyway, I thought that was pretty clearly private activity. But what they're saying is if the prosecutors are going to get involved, it has to be something that's so obviously outside the President's duties that you can say conclusively that if we prosecute here, this is not going to compromise the executive branch in any way as an institution.
How come smart people are having difficulty reviewing this case objectively?
AM: If you are going to take Trump, this is part of the thing that drives me nuts with arguing this with old friends of mine, because a lot of people who are even good lawyers, it seems to me, especially when Trump's involved, but maybe it's all politics, they can't put their clinical lawyer hat aside. It's always got to be about Trump. And the thing is, if you want to treat Trump in the political process, it's impeachment and everything is fair game.
But if you're going to take him and put him in the criminal justice system, then he's entitled to all of the rights and privileges of anyone who's in the criminal justice system. And for some reason, we understand that when the defendant is a terrorist, mass-murdering, anti-American jihadist, and everybody says, "Whoa, whoa, whoa. We have to show how our system shines. We have to give him all of the majesty of the Bill of Rights and be a shining example to everyone of how this really works and how the system is the envy of the world." And then when the defendant is Trump, it's like, "What do you mean due process? We don't need that." I think it's crazy.
What does this ruling mean for Trump’s pending trials?
AM: I think this will mean a lot in Georgia. The Georgia case is really a state subset of Smith's election interference case. It could have some effect on the Florida case because Trump will say that he was in office when he made whatever decisions he made about what classified information was shipped down to... I just want to talk about, in answer to your question, where I think this is going to have consequence. I'm not saying this is meritorious. I just think because the two things with Trump that we always have to look at are, one, is it meritorious? But more importantly, two, as a practical matter, will it cause delay? Which may affect whether it ever gets adjudicated or not, right? So Trump will clearly raise it in Florida. I don't know that it'll advance the ball much for him, but the reason that case is dead in the water right now, and I think it's terrible that they're blaming Judge Cannon for this, if Smith had indicted that as a narrow obstruction case, he could have gotten to trial.
And instead, he larded it with 32 classified information counts. And anyone who's ever been in one of these CIPA litigations, a Classified Information Procedure Act, where you have to litigate the admissibility of all the evidence before trial, and there are appeals, these cases are... And also, you have the problem of trying to pry the national security information away from the intelligence agencies. They're very hard to get to trial. And I think he was crazy to think not only that you could indict it on the calendar he had in mind and get it to trial, but you could also do that and at the same time, indict him in a second major federal felony case and think that was all going to work out prior to election day.
On the Manhattan case, my understanding of what happened here was Trump filed his motion yesterday by letter, and Bragg's office responded this morning saying, "We don't think there's any merit to what Trump is raising, but we don't have an objection to putting it off for a couple of weeks. And Trump has filed this thing, we'd like to have till the 24th to respond."
Why do you think Roberts was selected to write the majority opinion?
AM: It's appropriate for the chief justice to write. A case like this was going to be a real lightning rod case and I think he does a wonderful job. The thing I think he does a really, really good job on is saying throughout the opinion, "Stop being hysterical. We're not saying anyone's above the law, we're not saying he can't be prosecuted for private misconduct, but what we're saying is this is the presidency. It's got to be done very carefully. We're already rushing here. We're rushing so much that the lower courts didn't do what we've now decided was the most important thing, which is sorting out what's private and what's an official act. And the fact that we're rushing through something like this in a way that people aren't even seeing elementary facts that have to be found in order to decide this shows that the brakes need to be put on this and that people are not sufficiently appreciating that this is not about Trump, it's about the presidency."
"And if you want to get Trump, there's other ways to get Trump. But if we're going to deal with what the criminal justice system can do and how careful you have to be with the presidency, this is going to take time. And if you don't like that it takes time, it's because you're either being too political or you don't care enough about the interests that are involved." And I think he's got exactly the right tone to carry that message. And they are simply not saying what their critics are saying they're saying, which is that this is a great protection of Trump, or we're now turning the President into a king or we're doing any of that stuff. And this goes from the left of center to progressives, but progressives in particular, they like the evolution of the government where these lower anonymous officials who have very tenuous, if any, accountability to the people whose lives are at stake in the decisions that they make, they're perfectly fine with allowing those people to make all the decisions because they're the experts.
And if you want to have a government like that, you could write up a chart of government to run your society like that. But that's not our Constitution.
Read the transcript here.
SHOWNOTES
Divided Supreme Court Hands Trump Broad Immunity for Prosecution for Official Acts (Adam Klasfeld and Paras Shah, Just Security, July 1, 2024)
What's next for Trump's criminal cases after SCOTUS immunity ruling (Jacob Knutson, Axios, July 1, 2024)
Supreme Court Deals Blow to Trump’s Prosecution, Ruling He Has Broad Immunity (Jess Bravin, Wall Street Journal, July 1, 2024)
My Immunity-Case Prediction, Right and Wrong (Andy McCarthy, National Review, July 1, 2024)
Biden responds to Supreme Court's Trump partial immunity ruling (Axios, July 1, 2024)
Democrats rage at Supreme Court for Trump immunity ruling: ‘a travesty’ (The Hill, July 1, 2024)
Reactions to Supreme Court Ruling on Trump Immunity Case (US News via Reuters, July 1, 2024)
Congressional Dems blast ruling on Trump immunity: 'Extreme right-wing Supreme Court' (Fox News, July 1, 2024)
Hill Republicans cheer while Dems decry SCOTUS immunity decision on Trump (Politico, July 1, 2024)
Rep. Bonnie Watson Coleman (NJ-12) Statement on Supreme Court Ruling Regarding Presidential Immunity (Bonnie Watson Coleman Press Release, July 1, 2024)
Blumenthal Statement on the Supreme Court's Decision to Grant Trump Broad Criminal Immunity (Richard Blumenthal Press Release, July 1, 2024)
Pelosi Statement On Supreme Court Decision Violating The Foundational American Principle That No One Is Above the Law (Nancy Pelosi Press Statement, July 1, 2024)
AOC On Twitter (July 1, 2024)
Chuck Schumer on Twitter (July 1, 2024)
Thanks for that. Andrew McCarthy States what should be the common understanding of what the Supreme Court's responsibilities are. To INTERPRETE the law not make it. If we had common sense, this immunity decision is unnecessary. We have lost all sense of what our political system was designed for. To protect the blessings of liberty to individuals. Not to gain or keep power.