General thoughts on the Trump v. United States case

Some constitutional questions involve such high stakes and such fundamental tradeoffs that they are best left unresolved by the courts, if at all possible, because their resolution requires the courts to rule definitively in favor of one side and bear the potentially terrible costs of doing so. This conundrum was highlighted in the Supreme Court’s decision in Trump v. United States , which dealt with presidential immunity in the prosecution of former President Donald Trump for conspiring to overturn the results of the 2020 election.

Below are some general reactions to this case; more detailed analyses may follow in the coming days.

The Court has faced a series of novel questions about the scope of presidential power. Many people seem to have strong views about whether the Court's recognition of broad presidential immunity was right or wrong. But the standard sources of constitutional law do not provide a definitive answer to that question. And as for the ultimate question of whether the Court's decision was wise, only time will tell.

This case involves a tension at the heart of the U.S. Constitution. Article II gives the president of the United States executive power and gives him the duty to see that the laws are faithfully executed. These sentences give the president the power to interpret the law for the executive branch, to enforce it (including prosecutorial decisions), to supervise the operation of the government (including the dismissal of subordinate executive branch officials), and to direct government policy.

These same phrases, especially the precautionary clause, also ensure that the president is not above the law. The great paradox of the American presidency is that the same constitutional provisions that make the president beholden to the law also give him extraordinary power and discretion to interpret and enforce the law, and thus give an unscrupulous president the tools to abuse the law.

The paradox is palpable in the Biden administration’s prosecution of former President Trump. The case raises many difficult questions about what it means for the president to exercise the great functions of his office under the law, but they can largely be reduced to two. First, did Trump commit crimes in his post-election intrigues? And second, did special counsel Jack Smith unduly threaten the presidency when he accused the former president of these crimes?

None of these interrelated questions has an obvious answer. Smith’s case against Trump for his shameful post-election actions is itself entirely new and untested. Last month, the Supreme Court, in a case against a January 6 defendant, called into question one element of Smith’s legal theory against Trump. The other elements of the case against Trump are equally uncertain.

Anyone who thinks the second question is easy should (as I have noted) read the brief and oral arguments of the Office of Special Counsel, which did not find it easy. The brief acknowledges that to protect the president’s ability to perform his constitutionally mandated duties, courts can determine whether a public authority defense shields a president from criminal liability, or they can interpret criminal statutes in a way that avoids a serious separation of powers problem, or they can declare a particular application of a criminal statute unconstitutional. At oral argument, the special counsel’s lawyer conceded (among several other concessions) that he could not prosecute Trump in a way that would prevent the president from performing his constitutionally mandated duties.

It is in this context that the Supreme Court decision, written by Chief Justice John Roberts, comes into play. It has three parts. First, a president has no immunity from criminal prosecution for unofficial acts. Second, a president has absolute immunity from criminal prosecution that would violate the president’s official conduct in the exercise of an exclusive presidential power, such as granting a pardon or firing a subordinate. Third, a president has presumptive immunity for other official acts, broadly defined, that can be overcome if the prosecutor shows that prosecution for the act would not pose a danger of intrusion into the authority and functions of the executive branch.

The first two decisions are not controversial. By contrast, the third — a variation on what the special counsel proposed, but much more protective of the presidency — is highly controversial and a major victory for presidential power at the expense of presidential accountability, even though the Court left many decisions to lower courts in the first instance.

The decision was neither compelled nor overturned by prior Supreme Court decisions. Like virtually all major separation-of-powers decisions in this area—including the Nixon tapes case, the case establishing broad presidential immunity from civil suits (Nixon v. Fitzgerald), and more recent cases involving subpoenas served on Trump while he was in office—the decision was based on a plausible but not inevitable judgment about the best interpretation of constitutional text and structure, precedent, history, and, perhaps most of all, the Court’s functional assessment of the consequences of the proposed rules.

The functional compromise before the Court was glaring. As Justice Sonia Sotomayor pointed out in her dissent, the decision could give an unscrupulous president ample latitude to engage in corrupt practices. The dissent exaggerates when it claims that the Court’s decision makes the president a king above the law and grants him powers.[s] The president violated federal criminal law. Roberts’s opinion leaves open the possibility of prosecuting official acts (in addition to all private acts), and the law includes the proper scope of presidential immunity and the constitutionality of applying criminal laws to the president in certain circumstances, which are the central questions of the case that cannot be avoided. But there is no doubt that the decision strengthens presidential power far beyond what had previously been settled.

The majority opinion focused on two different but entirely plausible functional concerns. First, it worried that subjecting a president to prosecution for official acts, especially under the very broad and vague laws that Trump is accused of violating, would seriously undermine the president’s authority and functions and prevent him from fearlessly and fairly exercising his office. Second, it worried about a prospect that it thought was more likely than a corrupt and out-of-control president: a self-cannibalizing executive branch, with each successive president free to prosecute his predecessors.

There is no way to know which of these visions is correct. Both could be correct, to varying degrees, depending on many unknowns about the future, including:

Will Trump win the November election and follow through on his threats to break the law, and to what extent? And will the nation elect future presidents who share Trump’s attitude toward the presidency? To the extent that these events occur, what is worse for the nation: the clearer latitude that the majority immunity regime gives to irresponsible presidents? Or the fact that the most responsible presidents are paralyzed by the specter of criminal judgment after their term and the damage to our democracy that retaliatory lawsuits against former presidents could bring about because of the dissenters’ stance?

Much of the discordant reaction to the Court's decision, both inside and outside the Court, is based on assumptions about those decisions and other impenetrable assessments about the future and the impact of those decisions, based on possible future events.

Reactions to the Supreme Court decision are also tied to differing assessments of the political implications of the Supreme Court’s decision. After a late start, Smith rushed at breakneck speed, perhaps in violation of Justice Department rules, to resolve the immunity issues and launch the Trump case before the presidential election. Many of Trump’s opponents had hoped that a new pre-election release of evidence of Trump’s election denial maneuvers, and a possible conviction, would hurt his electoral chances. The Supreme Court’s decision now makes a pre-election trial all but impossible. The main result of the rush to the Supreme Court is a monumental precedent in favor of presidential power.

As I wrote a few months ago, the idea that the first prosecution of a former president could be conducted quickly without the need for a trial to determine the consequences for the presidency has always been a fantasy, even given the abuses of power alleged in the indictment. And more broadly, there has been a long-standing belief that courts and prosecutors can purge the nation of a populist demagogue who defies the law. Only politics, not the law, can do that.

Sources 1/ https://Google.com/ 2/ https://www.lawfaremedia.org/article/broad-reflections-on-trump-v.-united-states The mention sources can contact us to remove/changing this article

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