Good morning,
PRESIDENTIAL ABSOLUTE IMMUNITY AND THE VALUE OF THE TRIALS
By virtue of its agreement to hear the argument that a president has absolute immunity, the Supreme Court is wading into an area it could well have avoided and through its actions have acted in a manner that will deprive the American public of information material to this year’s election. After all, these trials not only have value in determining guild and innocence, as determined by a jury, but they also have the benefit of sharing with the American people the findings of investigators and prosecutors regarding Mr. Trump’s enabling of the insurrection and his efforts to remain in office despite the results of the election.
WHAT MOTIVATES THE COURT?
When in law school, I was persuaded by the notion of “judicial positivism,” which basically adopts the fiction (hopefully reality) that judges will make every effort to apply the law to facts, without regard for personal politics, outside influences, or a desire to manipulate the result. As I became less naïve and studied more, I began to see that judges are just like the rest of us in reaching their rulings. For sure there is a strong aspect of trying to do what’s “right,” but there is a fair bit of believing in their gut what the right answer should be (or they want it to be) and then working toward rationalizing their conclusion through reasoning the law and the facts into a box that supports their conclusion.
It is hard not to believe that is what is happening here borders on the manipulative or overreaching, on the one hand, and the nefarious, on the other. There really can be only a few reasons why the court would take up this case. To review the bidding, it takes only four justices to hear a lower court case. While there are more than a few vote counters who think there likely are no more than three or four votes likely in favor of Mr. Trump’s claims in reaching a decision on the matter at issue in the Appellate Court’s ruling (as to the precise facts of this matter), why take the case? If, indeed, upholding the lower court is likely, then this exercise will delay a trial on the Washington D.C. case by at least two months—pushing the case out to the Fall and any sort of resolution at the trial court level unlikely before the election. Here are the most likely reasons for why I believe the Supreme Court might be taking the case:
1. They really believe there’s something here on these facts. Perhaps there are four justices who truly believe that the matter is open for debate. The D.C. court’s decision was limited to the facts in this instance and offers a detailed argument for why there are limits to presidential immunity. There are relatively few constitutional law scholars who support the ridiculous claim of absolute presidential immunity attaches to any and all acts committed by a president while in office (although I’m sure Fox News will find a couple of outliers and parade them around as experts in the coming months). After all, as one of the D.C. Circuit Judges questioned Mr. Trump’s lawyer in trying to establish the limits of the immunity, “A president could sell pardons, could sell military secrets, could order SEAL Team 6 to assassinate a political rival?” Certainly, we don’t want presidents second-guessed for wartime decisions and then being tried for manslaughter or murder after they lead office. But we cannot read presidential immunity to extend to dictatorial actions that clearly fall outside of the performance of presidential duties. One might logically conclude that encouraging others to do what they can to stop Congress’s certification of an election to fall outside of presidential duties. What is at issue here is not a policy decision by a former president but actions for political gain. I doubt the Court will find that presidential immunity has no limits but, then again, who thought five years ago we’d be dealing today with a seemingly unlimited Second Amendment or whether a fetus is a human?
2. For whatever reason, the court feels it important to have a Supreme Court ruling on this matter and not allow the D.C. appeals court ruling stand. Some might say it is important not leave open the possibility that another circuit, on different facts, might reach a different conclusion (although, of course, one of the goals of the Supreme Court is to settle such inconsistencies as lower courts address the issues). A less activist court would let the ruling stand. After all, this is an imperfect case on unique facts. Not intervening here would follow the Hippocratic Oath of physicians (and I think applicable to Supreme Court review) of “first, do no harm.” But since they didn’t elect to let things play out, I think it possible that a majority wants to “make the law” here right now, on these questionable facts
3. The cynic in me sees the four votes to hear the case consciously putting their thumb on the scale in delaying the insurrection case so as to remove it as a factor in the election. Under the cover of “this is too important not to take up,” they are able to deliver to Mr. Trump a key electoral victory—postponing the case and digging through the sordid behaviors of the ex-president prior to the election. They already have Judge Aileen Cannon doing whatever she can (or so it seems) to delay the classified documents case in Florida). This would be just another enabling of the Trump delaying tactics.
4. Perhaps most disturbing is that there are four or more votes contemplating the notion that the measure of presidential immunity is not whether the president was acting in his or her capacity as president, but merely whether that president “alleges” that he or she is acting in the performance of their duties. The Court reframed the question they are deciding is not the actions of Mr. Trump and not even what the parties argued or what the appellate court considered. The reframing of the issue being decided is “whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” This formulation presents two odd notions. The first is the notion that presidential immunity might be present but somehow limited to some extent. I can’t explain that limitation. But the second is that they will rule on whether conduct alleged to involve official acts are enough to fall within the penumbra of presidential immunity. Since Mr. Trump alleges nearly everything he did as president was in the furtherance of his official duties, that would render his actions in encouraging people to challenge Congress in the certification of the election as within his alleged official acts. This is quite troublesome, as presidential immunity now and in the future would turn on the subjective determinations of the president and not the actions themselves.
THE COURTS HAVE BECOME THE MOST CONSEQUENTIAL BRANCH OF GOVERNMENT
Who nominates judges and justices is pretty important stuff. With the inability of Congress to get even the simplest things done, it seems the Supreme Court may well be the most consequential branch of government. The power of the courts is expansive.
Originally, the prevailing judicial philosophy of conservative jurists was originalism—trying to ascertain from the words, their context and their times what the founders intended. But originalism doesn’t get them all the way there. Originalism has been extended to include the concept of “traditionalism.” The concept is that the original words should be interpreted both in the context of the historical traditions and behaviors at the time of the founding. That would be bad enough, but then the originalists extend this analysis to considering the traditions established long after the Constitution was adopted. Indeed, Justice Alito pointed out that laws making abortion illegal in the 19th century (and not at the founding) should be evidence that abortion was intended to be illegal. Interpreting words based upon societal behaviors subsequent to the founding seems disingenuous (especially when the same majority takes pains to say they are not compelled to follow current public attitudes). But consistency is not what the conservative majority is striving for. It is agreeable results. Legislating from the bench is nothing new, but we seem to have reached new levels.
There’s a lot coming before the courts these days, in addition to the question of states’ rights to invoke Section 3 of the 14th Amendment to deny Trump access to the ballot and the recent shocking decision to take the Trump “absolute immunity case.” These issues include:
The Supreme Court likely will overturn the Chevron v. National Resources Defense Council case, which has stood for years for the notion that the courts would defer to executive agencies promulgating regulations that are consistent with, but not expressly provided, in Congressional legislation. This would allow broad powers for the court to overturn these agencies, would seriously constrain the functioning of these agencies, and throw the functioning of government into chaos.
Alabama is the first, but I suspect will not be the only, state court to find “personhood” in a fetus. Alabama has it start at conception but I suspect others will find personhood just a step or two down the road—like when pregnancy begins with implantation in the uterus. It is difficult not to imagine that we are in for even more expansive views of the beginning of life, based upon religious dogma, that will further limit young couples’ family planning and interfere with women’s choices and their very health. More about this in an upcoming Musing…
What powers does government possess to regulate the Internet? Is there a limit to the power of the moguls of the platforms? And how does antitrust law play into the actions of the big players?
It is hard not to see the Supreme Court as now constituting a third political branch. And, in reaching that conclusion, it is hard not to see it as the most consequential of the political branches.
MIXING UP GREAT CHANTEUSES
Ten readers corrected me on Friday for my incorrect reference of Carly Simon as the singer of “Big Yellow Taxi.” How could anyone forget that it actually was Joni Mitchell?!
All I can say is that they both were part of an abundance of great female singing talent of the 1960s and 1970s and I obviously suffered a brain freeze! Carly and Simon were only two. There also were Joan Baez, Judy Collins, Carole King, Aretha Franklin, Donna Ross. What a list of great talents during a very special era for popular music.
Have a great day,
Glenn
As usual your comments and thought are right on target. Thank you Glenn for speaking what others like myself find hard to express.