Supreme Court rules the President is immune from Persecution but not Prosecution

The court said that Presidents can't be persecuted for official acts within the scope of their Constitutional duties, but are not immune from prosecution for those that fall outside.

WASHINGTON — This past Monday the US Supreme Court released one of the most eagerly awaited decisions of the term. In Trump v. United States, the nation’s highest court, in a 6-3 decision split along ideological lines, ruled that the President of the United States is “entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.”

Not unexpectedly, the Left—including the court’s three liberal justices—are aghast, claiming that the court’s majority has given Trump a “Get Outta Jail Free” card in the federal case charging him with insurrection and the aiding and abetting of the January 6 rioters—as well as for any other of Trump’s past or future supposed misdeeds.

The court’s minority, and much of the media, were apoplectic. “Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency,” wrote Justice Sotomayor in the minority dissent. “It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.”

“The Court now confronts a question it has never had to answer in the Nation’s history,” continues Sotomayor, “Whether a former President enjoys immunity from federal criminal prosecution. The majority thinks he should, and so it invents an atextual, ahistorical, and unjustifiable immunity that puts the President above the law.”

In his column in the New York Times, contributing Opinion Writer Frank Bruni called the majority decision “supremely reckless” for failing to hold Trump accountable. “We tell children — or at least we used to — that actions have consequences,” writes Bruni. “What goes around comes around. Watch your behavior. You’ll answer for it someday. Donald Trump is the living, lying contradiction of that.”

Writing for the blog The Bulwark, Johnathan V. Last, in a post titled “The Supreme Court is protecting the president from you. It should be the other way around,” glumly hoped we all “enjoyed the last real Independence Day,” adding that “last week the Supreme Court ruled that presidents are, for all intents and purposes, immune from criminal prosecution.” If true, that would be truly disturbing. Fortunately, it’s not.

Responding to critics that the court has tilted MAGA, University of Chicago Law Professor William Baude, also writing in the New York Times, wondered aloud “What is going on? Some critics say that everything the court does is generally unprincipled and illegitimate, which is not correct.” While some—even the court’s three liberal Justices—are suggesting that the conservative wing is pro-Trump—”twisting the law in order to help the most recent (and potential future) Republican president,” Baude wrote, “that is highly doubtful…What is more likely is that in these cases, the court sees itself as trying to save the country from other institutions’ disproportionate responses to Mr. Trump.”

“The amazing thing is that Democrats are so surprised,” said a Wall Street Journal editorial. “They unleash history’s first prosecution of a former President, they’re astonished when it turns up novel legal issues, and then they’re outraged when the Justices consider the matter in light of the Constitution.”

Fixated on Trump, and not the Constitution

The three liberals on the court have perhaps come down with an acute case of THB, Trump-induced Hysterical Blindness, a variation of TDS—Trump Derangement Syndrome. They are so obsessed with stopping Trump by any means necessary they are blinded to the down-the-road consequences of their actions. “This case poses a question of lasting significance,” Chief Justice Roberts wrote, “When may a former President be prosecuted for official acts taken during his Presidency? Our Nation has never before needed an answer. But in addressing that question today, unlike the political branches and the public at large, we cannot afford to fixate exclusively, or even primarily, on present exigencies.” Present exigencies meaning Donald Trump.

Trump is divisive—no doubt—even among the Right. But as much as some in the media, as well as the three left-leaning justices, wanted to make this case about Trump, it’s about much more. The court’s decision protects the PRESIDENCY, not any specific PRESIDENT, or presidential candidate—not Trump.

Determining whether a former president may be prosecuted for acts while in office, according to the Court’s majority, “requires careful assessment of the scope of Presidential power under the Constitution. The nature of that power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is entitled to at least presumptive immunity.”

The majority decision is actually pretty straightforward. No former, or sitting, President has immunity for any act or actions that are not part of the “official” duties of the President. A president is “presumed” to be acting within the scope of the powers of the Presidency when they are acting within the “core” of the President’s constitutional powers. Questions about what is an official or unofficial act are left to the lower courts as the initial tryers of fact.

A novel approach

It’s summer—and in the summer I like to take a break from reading non-fiction, so the minority dissent makes entertaining, if not always compelling, reading. Justice Sotomayor has created a work of fiction with a plot that would make John le Carre proud, and transformed the liberal justices’ novel theory of the Constitution into, well, a novel.

I’m not making this up—though I wish I was, and the three liberal justices hadn’t. The court’s minority has created a political thriller where the President kills his rivals, seizes power, and pardons criminals in exchange for payoffs, all with impunity—blurring the line between fiction and fantasy.

“Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune,” Justice Sotomayor writes of her quasi-fictional President, “Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.” Really? As it turns out, it’s the dissent itself that’s immune—from reason.

“As for the dissents,” wrote Chief Justice Roberts, “they strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today.” The Chief Justice then attacks head-on the claim by Justice Sotomayor that the majority decision somehow makes the former President, or any President who commits criminal acts, untouchable. “Coming up short on reasoning,” Roberts wrote, “the dissents repeatedly level variations of the accusation that the Court has rendered the President ‘above the law.’”

“Like everyone else, the President is subject to prosecution in his unofficial capacity. But unlike anyone else, the President is a branch of government, and the Constitution vests in him sweeping powers and duties,” notes the majority opinion. “Accounting for that reality—and ensuring that the President may exercise those powers forcefully, as the Framers anticipated he would—does not place him above the law; it preserves the basic structure of the Constitution from which that law derives.”

These days it seems that just about everything is an “existential” threat to democracy, including Supreme Court decisions. The term—or its derivatives, like “fearing for democracy”—have been tossed around so casually they have been rendered meaningless—if they ever had meaning at all. Yet that doesn’t stop even Supreme Court Justices from resorting to what has now become cliche.

“Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law,” claims the minority’s dissent. “Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop. With fear for our democracy, I dissent.”

Justice Roberts, and the court’s conservative majority, disagree. “The dissents’ positions in the end boil down to ignoring the Constitution’s separation of powers and the Court’s precedent, and instead fear mongering on the basis of extreme hypotheticals about a future where the President ‘feels empowered to violate federal criminal law.’”

Ironically, according to a recent Washington Post poll, “More key-state voters trust Trump than Biden to handle threats to democracy in the U.S.” The Post’s Colby Itkowitz, Emily Guskin and Scott Clement write that “more of them trust Trump to handle those threats than Biden. And most believe that the guardrails in place to protect democracy would hold even if a dictator tried to take over the country.” That, they conclude, is “troubling” for Biden, “who needs voters who may be unenthusiastic about his candidacy to decide they must reject Trump to preserve America’s system of representative government.”

I’ll give most of the last words to Chief Justice Roberts.

“The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution…That immunity applies equally to all occupants of the Oval Office, regardless of politics, policy, or party.”

Thus Presidents can prosecuted for criminal acts, but a President can’t be persecuted for doing their job. That’s existential to democracy.