As promised, I went off and had a bit of think. I believe there’s something that might just be salvaged yet from the Supreme Court’s savage assault on the Rule of Law.
First, there is one sure-fire legal, constitutional mechanism that could be used, in theory anyway: constitutional amendment. That’s a long shot, and a complicated process that can take years, but if it could be done, SCOTUS couldn’t do anything about it. I note that the polling indicates 70% disapproval of the Court’s creation of Presidential immunity, which might help, but now I’ll have to brush up on the process and how the Republicans could obstruct it.**
Second, In deciding that a President has either absolute or presumptive immunity for “official acts” and acts “on the perimeter”, the Supreme Court left the door open for the prosecution of Trump for whatever the lower courts can determine to have been, unequivocally, “unofficial acts”. Which of the behaviours for which Trump’s been indicted count as “unofficial”? Well, nobody’s sure. SCOTUS threw it back to the trial courts, so it can be argued about for the next six or eight years while making its way back to them, supposing Trump isn’t elected President, and can’t make the cases go away. There’s a chance, though, that a lot of what Donald is charged with could indeed be determined to have been “unofficial”, as not flowing from the exercise of the powers of the Presidency.
Like what? Trying to get the Justice Department to participate in the coup, maybe? Nope. Official. Doesn’t matter why he was trying to get Justice to do his bidding – remember, in deciding, we’re not allowed to consider motive. Trying to get the Georgia Secretary of State to find non-existent votes? Iffy. Can’t a President phone a Secretary of State? Isn’t that one of the “perimeter” acts for which he’s presumptively immune? Perhaps, and again, we can’t consider motive, so it doesn’t matter if Trump knew the votes he needed didn’t exist and he was trying to cheat. Trying to get Pence to bugger with the electoral count in Congress? Ah, maybe now we’re getting somewhere. It is no part of the constitutional authority of the President to have anything to do with the electoral count. How can acting outside any function constitutionally assigned to the Presidency be “official”? Hopefully it can’t. The fake electors scheme? Ditto. Writing personal cheques to his personal lawyer to reimburse hush money payments? Surely that’s not official. Forging business records? Same deal, even if he cut the cheques while sitting in the Oval Office. Giving a rabble-rousing speech to incite an armed insurrection? You could argue that this was a campaign speech, not a Presidential address, so not “official”.
Going forward, with the helpful guidance of SCOTUS, it will be easy for Trump and others like him to colour within the lines and enjoy absolute immunity for their sins. Sell Pardons? Sure, why not? Get the Air Force to drop a smart bomb on a political opponent? Seems to be fine. Take bribes to appoint people to the federal government payroll, or the bench? A-OK. Put juicy classified info into a diplomatic pouch to be handed to the Russians in exchange for a new Trump Tower in Moscow? Can’t see why not.***
But Trump didn’t have the benefit of knowing the rules when he tried to lie, cheat and steal his way into office and stay there despite losing the election, and not everything he did involved the exercise of a power granted by the Constitution, or anything close to it. It will all come down to what the Supreme Court says, some months or maybe years from now, about the lower court decisions, supposing the cases proceed. I know, I know, but by the time it wends its way back, supposing it wends its way back, it may be a much different court, or the current court may be having second thoughts about the monster it just created, so you never know.
So yes, SCOTUS just drove a truck through the Constitution. They refused to take the eminently logical position that no act is “official” if it’s an abuse of power to achieve an illegal end, and thus it’s not enough that on the surface, he was pulling the levers that the Founders placed at his disposal. That there should be no immunity for criminal acts committed using the powers of the Office of the President is more than merely implied throughout the Constitution, as is the notion that the person whose role it is to take care that the laws are faithfully executed can’t possibly be insulated for deliberately breaking with that sacred duty.
And yes, SCOTUS committed the cardinal judicial sin of deciding things they didn’t have to. There was no need for grand pronouncements of general principles to settle the matter for all time. They could, like any sensible court, have left the general question of immunity for another day, and simply ruled that yes, there may be some instances of the exercise of Presidential authority that shouldn’t be prosecutable, but the things Donald did sure as shit aren’t among them, case closed, and see you in court, pal.
The decision is egregiously wrong, and creates a blueprint for future malfeasance on an epic scale. Still, with the indictments Trump is now facing, there remains a fair chance that he can’t use this ruling to skate, not on all of them.
Which isn’t to say there aren’t other ways he can skate anyway, as we’ve discussed ad nauseam in this space. Sure. But all isn’t lost, not yet, not for sure. There’s still this small sliver of hope. Let’s cling to it for now.
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**Joy-killing follow-up: an amendment to the Constitution requires a proposal approved by 2/3 majority votes in the House and Senate – impossible these days – or a constitutional convention called by 2/3 of the States – likewise impossible – followed by ratification by the legislatures of 3/4 (38 out of 50) of the State legislatures – once again, impossible as things stand with the Blue State-Red State divide. There will be no amendment to the Constitution.
***In the majority opinion, Roberts is very confusing on this score. He says, in a strangely incomprehensible footnote, that a prosecutor could, of course, introduce evidence of money flowing to the President, and could also use the official record to show that an official act had occurred, but both Coney Barret (in partial dissent) and Sotomayor (in dissent) agreed that since the rule is that there can be no inquiry into motive, or evidence of the discussions of, or factors behind, the decision to take an official act, Roberts’s framing of immunity would make proving bribery impossible.
the needlefish 