This is post is something I didn't think I would be writing about. Obviously, my thinking has changed. On Monday, July 1, the Supreme Court of the United States (SCOTUS) made its ruling on a case brought before it by former President Donald Trump regarding if he possesses absolute immunity from prosecution while he was the acting president of the United States. What prompted this case is that he is currently facing prosecution for being indicted on several accounts involving alleged activities that attempted to overturn the 2020 Presidential election in which Joe Biden was elected President. The attempt involved urging several key electoral states to choose new electors to send alternate electoral ballots to Congress rather than the certified ballots they already sent in order to allow Vice President Pence make a determination whether to accept the alternative ballots instead of the certified ballots, thus certifying that Donald Trump won the election.
Vice President Pence refused to accept the alternate state ballots on the basis that it was contrary to his Constitutional responsibilities. The result of his refusal led to an attack on the U.S. Capital on January 6, which was encouraged by then President Trump to halt the certification of Joe Biden as the new president. That attempt failed, but it was the first time in U.S. history that such an attack on the Capitol occurred.
The Supreme Court's decision in this case has determined that former President Trump with regard to carrying out his constitutional duties does have"Absolute" immunity. In this post, I am examining SCOTUS's ruling on "Absolute Immunity."
ABSOLUTE
"We conclude that the President is absolutely immune for conduct within his exclusive sphere of Constitutional authority."
Chief Justice John Roberts for the Majority.
The Supreme Court of the United States should have not taken the case of Trump v. The United States on the basis that the lower court had not adjudicated the case brought against Mr. Trump by the government to determine if there was cause to impose immunity. Their ruling on absolute immunity appears to be a prejudicial attempt to bypass normal judicial process, which SCOTUS invoked in another case involving absolute immunity in Trump v. Vance. (See below)
The concept of anything being "absolute" in the U.S. Constitution should have stopped the justices from considering the case brought before them by Mr. Trump. There is no small amount of hypocrisy in taking a case that alleges any person holding an office in the United States, including and perhaps especially the President of the United States has absolute immunity. For members of SCOTUS who claim to be constitutional originalist and who are known to have disputed cases on the basis that a word or term used in a filing is not found in the Constitution should have given them pause, since the adjective "absolute" is conspicuously absent in the Constitution. Absolute power was abhorrent to the founders of this nation and any sincere constitutionalist on the bench should have tasted vomit in their mouths at the suggestion that any member of a constitutional branch of government is afforded absolute immunity against criminal prosecution.
Immunity is only used in the fourteenth Amendment in reference to citizens in general, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States... ." That a sitting president possesses some immunity when acting in an official role is not being questioned here, but there is no such thing in the Constitution as "Absolute Immunity" from criminal prosecution. Simply put, SCOTUS should have refused to hear a case that invoked absolute immunity against criminal prosecution of a former president, particularly since it had already ruled in Trump v Vance in 2020 that a president does not have absolute immunity in a state's case. (See below)
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The three branches of Government in the U.S. were intended to act as a check and balance on each other. In Chief Justice Robert's ruling for the majority, however, he states, "Congress cannot act on and the courts cannot examine the Presidents acting within his "conclusive and preclusive Constitutional authority."
Since when?
A president has alway been subject to congressional oversight until now. SCOTUS itself has been, in the past, and may be called upon in the near future to examine whether a president is acting within the scope of his or her Constitutional role. There is nothing conclusive or preclusive in any branch of government to the extent that it cannot be questioned or challenged in Congress while a person is in office or by a court of law upon a person leaving office.
While the court's ruling is concerned about a hamstrung presidency, a greater is concern should be whether the people of the United States have any recourse against a president who asserts dictatorial authority with impunity. This ruling currently affords candidate Trump, who promises to become a dictator for one day, with unprecedented authority to do so and by doing so could attempt to become a dictator for life, should he win the upcoming election. It only takes an unguarded day for that to happen. If the history of former president Trump should have taught us anything, it is that he does not joke around about what he intends to do.
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ABOUT FACE
On July 9, 2020 Donald Trump appealed the Supreme Court over a lower court's ruling favoring Cyrus Vance District Attorney of the County of New York regarding a subpoena for Donald Trump's financial records which Mr. Trump refused to comply with on the basis that as a former President he has absolute immunity from prosecution. The following is SCOTUS's ruling in that case by Chief Justice John Roberts. Underlined and bold highlights are mine.
Two hundred years ago, a great jurist of our Court established that no citizen, not even the President, is categorically above the common duty to produce evidence when called upon in a criminal proceeding. We reaffirm that principle today and hold that the President is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need. The “guard[ ] furnished to this high officer” lies where it always has—in “the conduct of a court” applying established legal and constitutional principles to individual subpoenas in a manner that preserves both the independence of the Executive and the integrity of the criminal justice system. Burr, 25 F. Cas., at 34.
The arguments presented here and in the Court of Appeals were limited to absolute immunity and heightened need. The Court of Appeals, however, has directed that the case be returned to the District Court, where the President may raise further arguments as appropriate.
We affirm the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
It is so ordered.
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If absolute immunity did not apply Trump v. Vance, why does it apply in a Federal Case involving of an indicted former president for acting outside of his Constitutional role by restricting information about his communications and conduct between members of his administration much of which is a already a matter of public information via news media and congressional hearings? As Justice Robert says in his opening statement in Trump v.Vance, "In our judicial system, 'the public has a right to every man’s evidence.' Since the earliest days of the Republic, 'every man' has included the President of the United States. Beginning with Jefferson and carrying on through Clinton, Presidents have uniformly testified or produced documents in criminal proceedings when called upon by federal courts. (Highlights are mine.)
In citing, Trump v.Vance in Trump v. The United States that "The President’s duties are of “unrivaled gravity and breadth," they listed such things as the president's role as Commander-in-Chief. In Trump v. The United States, the government questioned whether a president's role as commander and chief of the armed forces can require the military to do anything he ordered. Could a president, for instance, use Navy Seals to assassinate a political opponent in the United States?
Beyond the government's hypothetical question, Mr. Trump has publicly made other threats during his campaign to use his executive authority to execute General Milley. He has also threatened to establish a military tribunal to prosecute former congresswoman, Liz Cheney. Mr. Trump's presidential campaign is largely couched in the language of revenge on his political and legal opponents.
Chief Justice Roberts downplayed such concerns. In his response to such concerns, he writes, "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.' Post, at 18 (opinion of SOTOMAYOR, J.); see post, at 26, 29–30; post, at 8–9, 10, 12, 16, 20–21 (opinion of JACKSON, J.). The dissents overlook the more likely prospect of an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next."
While such suggestions may have struck the Court as ridiculous or not within the scope of what they considered a president's absolute immunity, they didn't clarify their position with regard to the government's concerns about a president's ability carry out such threats when affirming absolute immunity in his role as Commander in Chief of the military and Mr. Trump's continuous threats to get even with those who have questioned his actions and prevented him from taking action after the 2020 presidential election and those who are now prosecuting the numerous indictments he has acquired since leaving office.
The Court should have made it clear in their ruling that executive authority does not include intruding into the responsibilities of the other branches of government. It seems as though the Court spent too much time trying to defend the the executive branch of government from oversight at the expense of putting the Congress, the Court and the citizens of the United States at risk of dangerous overreach by the executive. Mr. Trump's public statements as a candidate for the presidency move concern for a future Trump presidency beyond hyperbole.
WHEN DOES A PRESIDENT ACT AS A PRIVATE CITIZEN DURING HIS PRESIDENCY?
This is the question the Courts ruling in Trump v The United States raises. What the court did not consider and the government apparently did not do good job of clarifying is that during an election for the office a president currently holds, his campaign for re-election necessarily reduces his activities with regard to his being a candidate on par with his opponent; that is, he is acting in the capacity of a private citizen seeking office. The case before the U.S. District Court of Washington D.C. regarding Mr. Trump's attempt to interfere with the certification of the electoral votes on January 6, 2021 is simply a matter of the President, acting as a private citizen who inappropriately used his authority as the current President to prohibit a duly elected new President from taking office.
There is no question that Mr. Trump, as a private citizen, who lost his bid for re- election had a right to challenge the election through recount and judicial review, a right Mr. Trump exercised as any other private person seeking public office who questions the results of an election possesses. In Mr. Trump's case, after recounts and over 60 courts ruling that he had lost the election and Joe Biden was elected, Mr. Trump knew he lost but refused to accept the findings of facts by the court and concede the election. Mr. Trump is the only President who refused to concede an election after exhausting his right to challenge it.
In this sense, and according to the ruling in Trump v. The United States, then President Trump's use of his executive powers was supra-constitutional (acting above and beyond the boundaries and scope of his constitutional responsibilities). The interregnum period between a current president and the President - elect should be utilized to facilitate the smooth transition of power between the old and new administration. While this is not constitutionally mandated, there is a strong traditional sense of doing so for the good of the nation.
As a private citizen in the role of the President who campaigned for and lost an election, Mr. Trump did not have a right to consult the justice department in an attempt to direct them to get involved in the electoral certification process of President-elect Biden. He had no presidential authority to call members of state legislatures or state Secretaries of State to find votes that did not exist.
Much of what SCOTUS is attempting to hide from the public view in this case is already public knowledge. There is filmed footage of his speeches and his personal tweets to the public on January 6, 2021 that demonstrate his personal involvement in the attempt to overturn the 2020 presidential election. Beyond that, as affirmed in Trump v. Vance, "In our judicial system, 'the public has a right to every man’s evidence.'" Mr. Trump does not enjoy immunity from actions taken as private citizen while in office to usurp the authority of the presidential role he held to facilitate a personal grab for power. There can be no doubt about his intent and SCOTUS's ruling in this particular case is an attempt to hamstring the judicial system of the United States by its erroneous and hypocritical ruling regarding the concept of "Absolute Immunity."
MOVING FORWARD
Since this case was remanded back the U.S. District Court of Washington D.C., Judge Chutkan should promptly proceed with setting a date for this trial. This is not a time for the District Court or any court adjudicating the indictment before them to become squeamish about the SOCTUS's ruling. This ruling does not prohibit the District Court to move quickly. Taking note of the SCOTUS's concerns, Judge Chutkan most likely is having her court clerks and prosecutors their paralegal teams to exercise due diligence in assuaging SCOTUS's concerns.
The case can be made that former President Trump had no presidential authority over the results of the 2020 presidential election. He only possessed a personal right to legally challenge the results as a private citizen, which he did and which served to confirm that he lost the election. His only post-election role as the President was to ensure integrity of the constitutional process involved and by long-established tradition of a soon to be former president to pave the way for a smooth transition of power. In that instance, he not only failed to protect the Constitution of the United States, he incited a violent obstruction to Congress's duty to count the certified electoral ballots on January 6, 2021.
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Perhaps former President and current candidate for president Donald Trump has inadvertently done this nation a favor by pointing out the weaknesses within our Constitution. It is by no means a perfect document that answers all the question that arise from it. I have great respect for the Constitution in that it was and remains the foundation upon which "to build a better union."
Its weaknesses have taken on, in recent years, an ominous nature that demand immediate attention. Contrary to SCOTUS's remarks about the need to protect the office of the President by invoking absolute immunity with regard to a President's constitutionally exclusive sphere of authority, Congress should consider amendments to ensure that absolute immunity is not afforded a role within the Constitution.
The President, above all others, should be cognizant of the effects on the nation and the world of his/her actions and comments. What a president says or does is a matter of national interest at all moments of a president's term. There should not exist in this country an office that is immune from answering to the people of the United States regarding actions that become questionable. This should apply to Supreme Court justices as well. As the Court affirms, immunity is a legitimate concept within normal judicial processes on a case by case basis, but nothing should be absolutely immune from judicial processes or congressional oversight.
Moving forward requires that Congress makes a serious review of our Constitution's weaknesses regarding the role of the President; in particular, to further clarify that a president cannot use his authority to change the outcome of an election. It must also assure that "absolute" is never used with respect to issues involving our constitutional republic. All three branches must be equally robust in their roles, not just the executive branch. The threat of a presidency becoming a dictatorship has become too real for comfort. If anything it must be corralled within the Constitution's boundaries which, in the light of SCOTUS's ruling on absolute immunity, must be aided by amendment to protect the republic from the taint of a tyrannical presidency.
Norm
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