A Lawless Court Gives Us a Lawless Presidency

Someone should have told Richard Nixon. The president is above the law! A president can do anything he wants, as long as he is using his “core” constitutional powers to do what he is doing. This is true even if the president is deliberately misusing—even intentionally abusing—the powers of office. Because the president is (or was) the president, abusing powers of the office to engage in criminal wrongdoing, he or she is, forever, “absolutely immune” from criminal prosecution and punishment for such wrongdoing. The president’s evil or criminal motives do not matter. Even if a president is impeached, convicted, and removed from office for misusing the powers of his office to engage in criminal behavior, he is forever immune—possesses an “absolute immunity”—from subsequent criminal prosecution for his misdeeds. 

Even more, if the president’s criminal acts even arguably might be squeezed within the outermost bounds of actual constitutional powers of the presidency, deliberately misused, he is still “presumptively immune” from prosecution. (And it is not clear what, if anything, ever could overcome that presumption.) And even more yet, if a former president is prosecuted for criminal conspiracies and acts of an entirely “unofficial” character, evidence of the deliberate misuse of the office’s constitutional powers as part of the plot, or by way of explaining context or motive, is not even admissible in court to help prove his guilt or that his criminal acts were, in fact, intentional. 

Direct the CIA to tell the FBI to stop a criminal investigation of conduct involving the president’s associates or political campaign committee—that is, attempt a criminal coverup by misusing presidential power (as happened in Watergate)? The president is absolutely immune from criminal prosecution for such acts, even after he has been forced to resign from office. Falsely invoke “national security” to shut down a criminal proceeding? The president is absolutely immune from criminal prosecution.  (Nixon was in no danger, it turns out, and needed no pardon from President Gerald Ford.) 

Conspire (or attempt to) with your attorney general to bring fraudulent criminal or other legal investigations against a state or its officials in order to try to overturn your reelection defeat? A president is absolutely immune from criminal prosecution. Attempt a coup d’etat to preserve yourself in office past the expiration of your term, using the powers of the presidency to perpetrate the plot? Absolute immunity. 

Sell intelligence to the Russians? Solicit bribes for the granting of a pardon? Arrest a political rival on pretended grounds of federal law enforcement? The president of the United States is, in all such situations, absolutely immune from criminal indictment for any such acts and from the use of evidence concerning such acts against him in a criminal proceeding. 

Trump v. United States: Presidential Immunity from Law

Incredibly, that is the holding of the U.S. Supreme Court in its astonishingly lawless decision on July 1 in Trump v. United States. I exaggerate not one bit. Go read it. The Supreme Court invented—literally made up, conjured out of thin air—a brand-new constitutional privilege of presidents to engage in deliberate criminal activity, forever protected by an impenetrable bubble of absolute legal immunity. The decision was 6–3, with the Court’s self-described “conservatives” making up a new presidential prerogative unsupported by the text, structure, and history of the Constitution. Indeed, it is directly contrary to all three. 

Article II, concerning the presidency, nowhere says the president is immune from criminal law for acts done as president, after leaving office. (Article I, by contrast, says members of Congress have a specific, narrow immunity for what they say in “Speech or Debate” and are “privileged from Arrest during their Attendance” in or travel to and from Congress. The framers knew how to confer legal immunities when they intended them.) The Constitution says, instead, that the president can be impeached, convicted, and removed from office for “Treason, Bribery, or other high Crimes and Misdemeanors” (Article II, Section 4) and remains “liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law” (Article I, Section 3, clause 7) when not in office. Trump v. United States perverts and inverts these texts, holding that the President is not liable to criminal indictment, trial, and punishment for misusing his powers to perpetrate crimes. 

The Constitution’s structure is one of independent branches, checked and balanced by the powers of the others. The whole point of “checks”—each branch’s power to hold the others to account—is defeated by a doctrine that one or another is “immune” from the law, and from accountability to the others. 

As for evidence of original intent, the framers were emphatic and consistent in denying that the president would possess any criminal law immunity whatsoever. In the words of James Iredell, later a Supreme Court justice, typical of comments of many other framers: “If he commits any crime, he is punishable by the laws of his country, and in capital cases may be deprived of his life.” (The dissenting opinion in Trump v. United States collects many more such statements by the framers.) The majority opinion essentially ignores all of this evidence, instead creating a new presidential criminal immunity by bootstrapping it to a far narrower (and itself dubious) 1982 precedent concerning private civil suits against former presidents, Nixon v. Fitzgerald.

Of course, a president cannot be punished for his lawful use of constitutional powers. A criminal statute cannot trump (so to speak) the Constitution. Thus, if the Constitution gives the president authority to do certain things—grant pardons, make appointments, veto bills—Congress cannot make such actions crimes in and of themselves. That would defeat the constitutional powers of the president. A former president must be permitted to raise the defense that his actions were authorized by the Constitution and involved no misuse of constitutional powers. 

But Congress plainly can make it a crime to accept bribes in exchange for performing an act otherwise within the scope of the president’s power (like issuing pardons or making appointments). To deny this would be to say that whatever a president does with his constitutional powers is therefore automatically lawful and constitutional—and cannot be made the subject of a criminal inquiry, indictment, or trial. That would defeat the constitutional powers of the other branches and place the president above the rule of law and constitutional limitations.  

Richard Nixon infamously once said: “When the president does it, that means it is not illegal.” Wrong. If the president acts in a constitutional manner, Congress cannot make that illegal. But if the president commits an action not properly within the scope of his true constitutional powers, a crime does not become something other than a crime, punishable as such, just because the president is the one who has done it and deliberately misused the powers of the presidency to do it. Such a proposition is just plain monstrous.  

But that’s pretty much the proposition the Supreme Court embraced in Trump v. United States, granting the president a sweeping, absolute “immunity” from prosecution, whenever and however he asserts that he was employing one of his constitutional powers, irrespective of his actions and motives. The Supreme Court’s decision in Trump v. United States is a blank check for presidential abuses of presidential power.

Powerful, Prophetic Dissents . . . and the Majority’s Silent Assent

Rarely do I find myself in such complete agreement with the liberal justices on the Court. Sonia Sotomayor’s dissent (for three justices) nails Chief Justice John Roberts’s majority opinion on all points. Her devastating opinion raises all the nightmare scenarios and implications of the conservatives’ decision for Trump. Under the majority’s rule, Justice Sotomayor wrote, “Any use of official power for any purpose, even the most corrupt purpose indicated by objective evidence of the most corrupt motives and intent, remains official and immune.”

The Court effectively creates a law-free zone around the President . . . When he uses his official powers in any way, under the majority’s reasoning, he will now be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 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. . . .

Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.

It is hard to argue with Justice Sotomayor’s assessment. The truly stunning thing is that the majority does not really argue with this assessment, either. Astonishingly, the majority does not deny that the hypothesized nightmare scenarios actually would be ones where a rogue president would enjoy “absolute immunity” from prosecution under its invented rule. (If it were not so—if the majority regarded the dissent’s hypotheticals as outlandish and unfair—they presumably would have said so.)

Unbridled “Conservative” Judicial Activism

I say “invented” rule. For that is what it is—a judicial concoction, extrapolation, interpolation that is nowhere to be found, and cannot faithfully be deduced from, the words and logic of the Constitution’s text, structure, and history. Trump v. United States is judicial activism, pure and simple. 

And it is judicial activism in the service of a deadly dangerous policy. The majority’s legal invention is an unaccountable chief executive and commander in chief—a president who literally can do anything he wants with his constitutional powers and never face criminal prosecution for it, no matter how bad and no matter whether it is done in willful bad faith. Even if it were legitimate for the Court to make up law to achieve what it thought to be good policy, it is difficult to believe that any sensible person would write this policy into the Constitution. (The framers sure didn’t.) The presidency is an office of formidable constitutional powers that I have defended in my academic scholarship. But those strong powers make sense only because they are checked and balanced by the strong powers of the other branches and the obligation of each to hold the others accountable to the Constitution and the rule of law. Erase the checks—erase accountability—and an executive for a constitutional republic becomes unchecked despotism, wholly dependent on the character of the despot.

The Court’s policy is bad in general and bad in particular. It is not an incidental consequence that the Court’s judicial activism serves the interest of a former (and future?) president who has already done practically the worst thing a U.S. president could do or has ever done in American history—betray his oath to the Constitution and willfully attempt to overthrow the result of an election he knew he lost and cling to power notwithstanding his defeat. Justice Sotomayor’s hypothetical of a president organizing a coup d’etat to unlawfully stay in power is not hypothetical. 

Finally, this is “conservative” (if that is the right term) judicial activism. The creation of absolute presidential criminal immunity is a judicial invention and policy devised by the justices one ordinarily would have thought to be legal conservatives—that is, those whose stated methodological commitment (and occasional practice) is to seek to discern and apply the original, objective meaning of the Constitution’s text and structure, prioritizing that meaning over precedents contrary to the Constitution and definitely not enlarging erroneous judicial doctrines or creating new ones to advance their preferred policy agendas.  

Trump v. United States violates every principle of legal originalism. In this case—and, notably, in two others concerning Trump’s wrongdoing, Trump v. Anderson and Fischer v. United States—the conservative wing of the Court abandoned first principles of originalist-textualist constitutional and statutory interpretation. Regrettably, the Court’s so-called conservatives appear to have succumbed to the same disease of which they have long rightly accused liberal judicial activists: the lawless inclination to make up law, and disregard constitutional meaning, to suit the justices’ policy preferences. Such an inclination is the feature uniting many of the worst cases in the Court’s history—Dred Scott, Plessy v. Ferguson, Korematsu v. United States, Roe v. Wade, and a dozen or so other judicial atrocities. Trump v. United States joins the line. 

Two years ago, I wrote in praise of the Court’s principled and courageous decision in Dobbs v. Jackson Women’s Health Organization, the landmark case overruling the Court’s lawless invention of an abortion right in Roe v. Wade in 1973. How far and fast the Court has fallen. Pride goeth before a fall, and one of the Court’s proudest moments of all time—the Dobbs case’s overruling of Roe’s monstrous judicial usurpation—has been followed not by judicial humility but by judicial hubris. Trump v. United States, with its elaborate judicial creation of three tiers of categories for presidential criminal immunity and inscrutable, nonsensical “tests” for each, resembles nothing more strongly than Roe v. Wade’s creation of a convoluted, disingenuous “trimester” framework for abortion rights.

Trump v. United States is to presidential immunity what Roe v. Wade was to abortion rights. It is Roe for presidential criminals. It is Dred Scott for the Constitution’s checks and balances. It is the new Plessy for abandonment of judicial principle. It is Korematsu reloaded. 

In one respect, Justice Sotomayor’s dissent has it wrong. She writes that with Trump v. United States, the law has “shifted irrevocably.” Not so. The law is not whatever the Supreme Court says it is. (If it were, Dred Scott, Plessy, Korematsu, and Roe were “the law” and should have remained law.) The law is what the law is. The Constitution is what the Constitution is. The Supreme Court cannot erase or rewrite the Constitution. Its decisions are never irrevocable. (Again, if they were, we would still have Dred Scott, Plessy, Korematsu, and Roe.) It is our duty—“We the People,” whose Constitution it is—to preserve it and reclaim it from those who would abuse it or disregard its principles, whatever office they might possess. 

Trump v. United States is not the law. The Constitution does not confer absolute presidential immunity from criminal prosecution for criminal acts not justified by the president’s constitutional powers. The president is not a king above the law. With the failure of the courts and political institutions to preserve and enforce these principles, it falls to us, who are the first and last check on government, to do so with all the lawful powers at our disposal as citizens.  

Image by steheap and licensed via Adobe Stock.