Special Prosecutor Jack Smith, believes President Trump conspired to “overturn the legitimate results of the 2020 presidential election by using knowingly false claims of election fraud to obstruct the federal government function by which those results are collected, counted, and certified.”
The ex-president’s legal team offered a challenge which the Supreme Court considered this Spring: “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.”
Few TV legal “experts” predicted Trump would win this appeal; however, in early July, the Supreme Court ruled (mostly) in favor of the president. The Supreme Court Protects the Presidency in Trump v. U.S. – WSJ
Partisans on the left and right are reacting to Monday’s Supreme Court decision on presidential immunity based on how it affects the fate of Donald Trump. That’s a blinkered view that ignores the long-run implications for the American republic. The 6-3 Court majority rightly focuses on the institution of the Presidency, and the ability of all Presidents—not merely the last one—to act in the national interest free from prosecution for official acts.
Immediately afterwards, speculation turned to the decision’s meaning and impact. If you prefer, a media personality (who makes lots of money telling you what you want to hear) will tell you President Trump is now free to implement his evil reign of terror should he be re-elected. Your worst fears are now closer than ever. It will be the last election ever if he is elected. You must do something to prevent this terrible event.
Thankfully, little effort is needed to counter such hyperbolic nonsense.
First, this decision does not mean the ex-president (or the current president or any political executive in general) has absolutely immunity while in office. In fact, there are numerous guardrails plainly outlined in the decision. The decision also does not mean President Trump (or any other president) can literally shoot someone on Fifth Avenue or assassinate political opponents with impunity. President Trump made this statement tongue in cheek a few years ago, and one-channel media pretends it is Republican dogma. They hope to scare voters: “there are no more limits” (but even most media know better).
Unfortunately, the hysteria has spread to the Supreme Court itself. Justices we once believed were serious and somber folks who stick to the interpretation of law have immersed themselves in partisan politics. Justice Sotomayor, in a dissenting opinion, claims this decision is a dangerous precedent. She ought to submit her opinion on The View not in a legal artifact:
The decision is far more nuanced than Justice Sotomayor implies. The outrage ought to be over her comments, but silly statements are commonplace today.
Americans are not so brainwashed to believe President Trump will be elected, then order the military to kill his chief political opponents, and then be excused for this behavior. After all, he was president for four years and never did any such thing.
Such rhetoric scares folks to vote against Trump–despite the fact there has never been any such scandal. Even the January 6 charge Jack Smith is still investigating does not mention violence against political rivals; it only mentions “false claims” made by the president.
“I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard,” Donald Trump, January 6, 2021
If a president actually assassinated political rivals, the American people would never tolerate it. The president would instantly lose support, even in today’s hyper-partisan environment. Political allies would abandon the president, and the Congress would not hesitate from impeaching an out-of-control president.
Attempted assassinations, if they have occurred, have been obscured from public view. There has always been much speculation about who really killed JFK or who was behind the attempted assassination of Reagan (or what’s the rest of the story on the recent attempt on Trump), but none have been pinned on political opponents. The president and his party implicated in a plot would no doubt be ousted from office.
You may believe President Trump intends to order a hit on his opponents, but he would never get away with it. Media is stacked against him, and would actually do their jobs if such a thing occurred. Furthermore, President Trump does not have widespread support among the government bureaucracy. Government workers favor Democrats almost two-to-one. These folks are going to keep quiet during President Trump’s future coup–his attempt to consolidate power and execute all his political opponents? Such efforts would be quickly exposed by whistleblowers. https://www.pewresearch.org/politics/2022/06/06/the-people-of-government-career-employees-political-appointees-and-candidates-for-office/
Also, presidential immunity is not a new concept. Presidents have claimed it forever. They claim it routinely, often to cover up misdeeds but also for legitimate reasons. Murder is not an act that has ever been protected by presidential immunity, nor did the Supreme Court change the calculus this year. There is even precedent for this. Aaron Burr while serving as vice president was indicted for the murder of Alexander Hamilton. Vice President Spiro Agnew was indicted for corruption and resigned from office in 1973. Former President Bill Clinton accepted a plea deal for a perjury charge during which he lost his law license after leaving office. The Supreme Court did not negate any of these precedents. Immunity protected none of these gentlemen, nor would it protect President Trump or future presidents from similar violations of the law.
The Justice System has had no inhibitions about ruling against Donald Trump multiple times already–even while he was in office. The Justice System does not fear him. The Justice System has convicted him in one trial, but with minor peccadillos not serious felonies (the misclassification of non-disclosure payments). Nevertheless, MSNBC’s Joy Reid stirs her audience echoing Justice Sotomayor’s claim anything goes:
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 SEAL team six to assassinate a political rival immune, organizes a military coup to hold onto power immune, takes a bribe in exchange for a pardon, immune, immune, immune, immune.
Ms. Reid has the common sense of a kumquat. If there is a hint Trump is implicated in a bribery scandal, one-channel media will cover it endlessly (they covered up Biden’s shady dealings with foreign governments, but Trump would not be given any such grace). Trump would lose support among his own party as well (allies would seek to save their own election chances before all else). I can’t see Seal Team Six carrying out an assassination for any president. Military members and law enforcement are not bound to carry out illegitimate orders. They would refuse such a request. We have never a military coup in this country because the military has never been willing to go along. I imagine we have had a few presidents who would have considered it, but the opportunity has never been available. Julius Caesar would not be welcome in America.
The Real Concern
The Guardian, a Left leaning publication, reveals the Left’s real concern: this decision delays the case against Trump until after the election. The US supreme court utterly distorted the true threat to American democracy | Lawrence Douglas | The Guardian
The court could have limited itself to the matter at hand – whether Trump enjoyed immunity for his alleged acts of election interference as charged in the federal indictment. It could have held off to another day the larger question or scope of presidential immunity. And it could have reached this narrow decision months ago, thus affording the American people a trial court’s judgment concerning Trump’s most serious attack on American constitutional democracy, prior to the 2024 election.
Here is the crux of the matter: the Left wants the election of Donald Trump stopped no matter what. They see him as existential threat. Anything goes to stop him. Claim he will employ Seal Team Six and all else at his disposal to frighten voters. One need not prove the legitimacy of the claim; the seriousness of it is all that matters.
Yes, the January 6 case against Trump is delayed by the ruling, but such delays are common in our Justice System. These protections (rights) are built in to prevent innocent folks from being convicted. At this point in Trump’s case, the lower court must decide which indictments move forward and which are discarded, a time consuming task, but after they decide, the case can resume.
As suggested, the court could have limited itself to the Trump case alone and not made a more sweeping decision on presidential immunity. However, this is an important clarification not simply for President Trump, but for all future presidents. Far too often the court avoids the larger question, kicking the can down the road for some other court or legislature. The court set a precedent which can last for years now. It is better to be decided now and not kicked down the road yet again.
Furthermore, why can’t Trump question the 2020 election? What is wrong with questioning results? A few swing states (Arizona, Georgia, Wisconsin especially) were exceptionally close. A few suspect votes in one direction could have easily changed the result. If the opportunity to cheat is available and a small change can make a difference, why do so many scoff at the notion of this specter being raised? We should all want to be re-assured our democracy is not corrupted.
In addition, such debate has been common, especially since 2000. The most prominent Democrats: Hillary and Bill Clinton, Kamala Harris, Joe Biden, Jimmy Carter, Barrack Obama, Al Gore, Nancy Pelosi, Harry Reid, Ted Kennedy, Bernie Sanders, and dozens more senators and representatives have repeatedly raised concerns as serious and as direct as President Trump’s election claims. This video which lasts ten minutes demonstrates such conjecture is common: https://rumble.com/v1agmfi-rnc-research-montage-ten-minutes-of-democrats-denying-the-presidential-elec.html
Should the long list of election challengers be indicted as well? Are their actions also “serious attacks on American democracy”?
The Actual Decision
The court came to the reasonable conclusion a president should not be intimidated from doing his job. It is a logical protection.
Transcript: https://d3i6fh83elv35t.cloudfront.net/static/2024/07/scotus_immunity-7-1.pdf
“A President inclined to take one course of action based on the public interest may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office, and if a former President’s official acts are routinely subjected to scrutiny in criminal prosecutions, ‘the independence of the Executive Branch’ may be significantly undermined.”
The president makes life and death decisions. He needs the freedom to attack enemies of the state or make other important decisions without the worry of being legally challenged for every controversial action.
A few years ago, during the Obama Administration, several American citizens were accidentally killed in drone attacks. https://brookings.edu/articles/holder-weve-droned-4-americans-3-by-accident-oops/. Should President Obama have been prosecuted for drone attacks on American citizens? His judgment was indeed questioned at the time, but nobody seriously considered charging him with crimes for actions ostensibly taken in defense of the country. Unless the president had illegitimate motivation, immunity protects the president. It is enough to show the president is attempting to protect American citizens. The president should not only have the presumption of innocence as all Americans do, but also the presumption of immunity in such instances. Our nation’s security depends on the president’s ability to act.
Everyone, not just the president, charged in the US is afforded a presumption of innocence in a courtroom. Despite this protection, not everyone is acquitted. The presumption of innocence can be (and frequently is) overcome. Similarly, a president’s presumption of immunity can be overcome with strong evidence against him. This presumption does not give the president carte blanche. President Obama was presumed immune for actions taken against enemies overseas; however, his action could have still been legally challenged if revelations came to light later. Nevertheless, that must be a high bar to clear. We presume the president took action with legitimate intent. A president should not continually look over his shoulder and be forced to factor his own personal and legal interests when making important decisions.
The court also did not go as far as President Trump’s petition sought. The court did not blindly follow Trump’s personal interest (note well: these same justices have acted against Trump’s interests in several other instances). Furthermore, limitations on presidential immunity are peppered throughout the decision:
A former President lacks absolute immunity from federal criminal prosecution for conduct involving his official acts.
Federal criminal law applies to the President. Petitioner suggests that unless a criminal statute expressly names the President, the statute does not apply. That radical suggestion, which would free the President from virtually all criminal law—even crimes such as
bribery, murder, treason, and sedition—is unfounded.
Marbury did not hold that a President’s official acts can never be examined in a court, and a host of cases from the Founding to the present refute that claim. The cases on which petitioner relies stand for the distinct and narrower proposition that courts will not enjoin a sitting President. That principle has no application to criminal prosecution of a former President
Reasonable people can debate whether the president’s actions on January 6 are “official” or “unofficial” acts. If not official, if outside the scope of Constitutional responsibilities, the president can be charged. An act of Congress is not needed. This ruling left the case to the interpretation of lower court judges. The lower court to decide what charges are still legitimate within the Supreme Court’s prescribed guidelines. The lower court, not the Supreme Court, decides which charges Trump should be charged. This is still unsettled.
Let The Politicians Fix The Problem?
The court’s logic is oxymoronic: because the constitution demands the president faithfully execute the law, he is immunized for his attempt to corrupt and subvert that very law.
The court never said a president acting outside the law, a president who subverts basic laws, cannot be prosecuted. It is a totally unfounded claim. Presidents must adhere to all the ordinary laws we are all subject to. President Ulysses Grant was once charged with speeding. Senator Majority Leader Schumer himself tacitly made this point in his objection to the ruling Schumer Seeks to Thwart Trump Immunity Claim for Jan. 6 | Newsmax.com:
Senate Majority Leader Chuck Schumer, D-N.Y., is spearheading legislation to classify former President Donald Trump’s actions during the Jan. 6 riot as unofficial.
“We Democrats will not let the Supreme Court’s decision stand unaddressed. The Constitution makes plain that Congress has the authority to check the judiciary through appropriate legislation,” Schumer said on the Senate floor, the Washington Examiner reported.
The legislature can define “official” and “unofficial” acts to hold executives more accountable. It is suspect to attempt this after the fact, and in order to target your political opponent, but go ahead if you please. However, whatever is decided must be applied to all future executives, not just one whom you oppose.
President Biden got into the act too. He introduced a new proposal which would virtually reverse the court decision. President Biden should realize, however, he too is impacted by the Supreme Court ruling and any future legislation:
This No One Is Above the Law Amendment will state that the Constitution does not confer any immunity from federal criminal indictment, trial, conviction, or sentencing by virtue of previously serving as President.
The constitutional principle that nobody is above the law has not been undermined; the president must still follow laws which apply to all other Americans. The president was given only a presumption of immunity, a presumption that can be overcome. Nevertheless, the hyperbole continues:
Trump reposted messages on Truth Social, his personal social media platform, calling for the prosecution and imprisonment of his declared political enemies. Among those targeted were the former representative Liz Cheney (“guilty of treason” – a capital offense), the former vice-president Mike Pence, senators Chuck Schumer and Mitch McConnell, representatives Adam Schiff and Jamie Raskin, the vice-president Kamala Harris, and president Joe Biden.
President Trump has been very vague about such retribution, but then he is very vague about so many things.
“Look, when this election is over, based on what they’ve done, I would have every right to go after them, and it would be easy because it’s Joe Biden,” Trump to Fox News’ Sean Hannity.
Yes, he can go after Biden and others, but then the Biden Administration has been the one prosecuting and jailing political rivals such as Steve Bannon, Roger Stone, Paul Manafort, Mike Flynn, and others. We all know President Trump never attempted to jail a political opponent (not even Hillary Clinton) and never attempted to assassinate anyone while in office. Furthermore, the former president himself has been prosecuted already. Is the risk Trump raises himself real or not?
The American people have lost their way, but again they would not stand for a president running amok and knocking off political opponents. This ruling does not overrule the impeachment clause. We have seen how quickly impeachment trials can be organized. Even politicians of the president’s party would not excuse this. They too do not want to be punished at the next election. The legal system would also not be deterred from acting if all this came to pass.
This decision only clarifies an important, long-standing and frequently used practice. It does not expand its limits and we should not be alarmed. In fact, it is a reasonable clarification long overdue.
Dave https://seek-the-truth.com/about/
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