Today I Learned: Presidential Immunity

Trump v. United States

I am not and never have been a Constitutional scholar, but I have been pretty much a Supreme Court junkie since law school. I have eagerly awaited the decisions, poured over the arguments, and enjoyed the legal reasoning. I had a great deal of respect for the Supreme Court as it wrestled with the tough decisions, even when I disagreed with its opinions. Until recently.

Until this week, the worst Supreme Court ruling I had ever read was Dobbs v. Jackson Women’s Health Organization, which overturned fifty years of reproductive rights. That decision is notable for its complete lack of reasoning. Both the legal and historical arguments are inaccurate and, in fact, pretty nonsensical. That decision was the worst I had read – until Trump.

Once again, the Court has determined a politically desirable ruling and then attempted to cobble together arguments to support it. As a matter of law and fact, it has failed miserably. Not that it doesn’t try to find justification for overturning years of Constitutional and criminal law. As in Dobbs, finding no solid basis for its arguments, the Court relies heavily on flawed descriptions of constitutional protections and “tradition.”

The Court argues that the President needs to be able to deal “fearlessly and impartially” with the duties of their office, and a fear of criminal prosecution would make them “unduly cautious” in the discharge of their official duties. Because of this, the President must be granted absolute immunity from criminal prosecution, and a former President must be granted absolute immunity from any official acts committed during their presidency.

Of course, former Presidents may be held criminally liable for “unofficial” acts, but the Court gives no guidance on determining which acts are official and which are unofficial. It only states that courts may not inquire into the former President’s motives and may not introduce evidence derived from an official act, even when it is relevant to the case before them.

The dissents in this case are remarkable, both for their legal expertise and reasoning and for their snarkiness. Justice Sotomayor, with Justices Kagan and Jackson joining, writes that the majority “invents an atextual, ahistorical, and unjustifiable immunity that puts the President above the law.” She raises the question of why requiring the President to pay any attention to complying with federal law is such a burden and states that she is “deeply troubled by the idea . . . that our Nation loses something valuable when the President is forced to operate within the confines of federal criminal law.”

Justice Jackson, writing separately, then asserts that the majority’s opinion “accepts as a basic starting premise that generally applicable criminal laws do not apply to everyone in our society.” In her dissent, Justice Sotomayor also emphasizes that the majority has created a “law-free zone around the President,” that person the Constitution charges to “take Care that the Laws be faithfully executed.” She signs off, “With fear for our democracy, I dissent.” Me, too, Justice Sotomayor, me too.

In Trump v. United States, there is a clear winner. Trump has won, and the United States, our country, our democracy, has lost.

July2, 2024