Reflections On the Fourth of July, 2024

 

Reflections On the Fourth of July, 2024

July 4, 2024

Two hundred forty-eight years ago today, thirteen British colonies in North America declared their independence from Great Britain. They did so in the name of liberty. Limited liberty to be sure, for there were still many enslaved Americans of African descent in those colonies, and women had no rights, but still. This nation’s founders said, though they didn’t actually believe, that “all men are created equal.” They declared their independence from a British monarch who was essentially above the law. In the nearly two and a half centuries since then, this country has struggled mightily to live up to the principles of the Declaration of Independence, though today most of us understand those principles more broadly than did the men who drafted that Declaration.

We have made some significant progress in that effort, but our history is hardly a straight line toward making those principles reality. We stole the land from and committed genocide against First Nations people. It took a civil war to end slavery, then we let the racist south institute Jim Crow while the racist north engaged in more subtle but nearly equally effective forms of racial discrimination. Women forced us men to give them the right to vote only in 1920. Several decades ago we refused to enact the Equal Rights Amendment, which would have given broader women’s right constitutional protection. In very recent times the United States Supreme Court took a constitutional right away from all Americans when it overturned Roe v. Wade. No. Our trek toward making the principles of the Declaration of Independence has hardly been a direct one, and it has been only partially successful.

This country adopted the United States Constitution in 1789. That constitution doesn’t establish a pure democracy, but it does create a democratic republic. It creates the office of the President of the United States. It specifies certain duties and responsibilities of that office. It does not make the president a king. Under the Constitution, a president serves for only four years, and after World War II and the four-time election of FDR as president, we amended the Constitution to provide that any person may be elected president only twice. Nowhere does the Constitution explicitly establish presidential immunity from criminal prosecution.

Then, on July 1, 2024, the United States Supreme Court issued a decision in the case of The United States of America v. Donald J. Trump that turned the presidency into something the Constitution never created that office to be in the first place. The background of that case is that former president Donald J. Trump has been indicted multiple times for crimes he allegedly committed while he was president and shortly after he left office. He was recently convicted of having committed thirty-four felonies by a court of the state of New York. In the two federal criminal cases against him, Trump has argued that the president is immune from criminal prosecution for any crime he committed while he was president. The federal trial court in which one of those cases was filed denied the motion for dismissal in which Trump made that claim of presidential immunity. (The other court has not ruled on that motion). The United States Court of Appeals affirmed that denial unanimously. It dismissed Trump’s immunity claim outright. The United States Supreme Court granted cert.

In its decision of July 1, 2024, the Supreme Court rewrote the Constitution. The court’s majority held that a president is immune from criminal prosecution for any act he or she takes in connection with the president’s “official acts” while remaining subject to criminal responsibility for unofficial acts. The court said that “official acts” are those which relate to the “core constitutional responsibilities” of the presidency. The court gave essentially no further direction as to which presidential acts are official and which are unofficial.

The Supreme Court’s decision on Trump’s unprecedented immunity claim put the president above the law. Now any president can claim immunity from criminal prosecution for anything the president does as president. It seems a president could still be criminally prosecuted for something like business fraud the president committed in a personal capacity while president, personal business hardly being a core presidential constitutional responsibility. But Trump’s lawyers argued before the Supreme Court that the president could order the US military to kill a political opponent and not be criminally liable for murder. In its recent decision, the Supreme Court agreed that the president would be immune from criminal prosecution for such an act as long as the act was “official” in the court’s sense (vague as it is) of what an official presidential act is. In its decision, the Supreme Court’s majority denied that its decision put the president above the law, but that assertion is simply laughable. Putting the president beyond the reach of the criminal law is precisely what the Supreme Court has done.

One of this country’s foundational principles has been that we live under the rule of law not under the personal rule of any person or any political position. The United States Constitution provides for the legislative passage, presidential approval or veto, and the judicial interpretation not of the acts of any individual person but of federal law. It cannot be denied that one of the founders’ primary contentions in rebelling against Britain and in enacting the Constitution was to create a rule of law not a rule by any individual person. Until Donald Trump made his outlandishly absurd claim that he is above the law, no president, not even the presidential criminal Richard Nixon, thought that he was above any law. Nothing in the Constitution puts anyone above the law. Yet that is precisely what the Supreme Court has now done with regard to the presidency.

This decision by the highest court in the land is truly radical. It represents a revolutionary assault on the legal principles on which this country was founded and on which it has stood for nearly two and a half centuries. This decision would be unconscionable in any circumstance, but today’s political circumstances in the United States make it even more immensely dangerous than it otherwise would be.

Former president Donald Trump is the presumptive Republican nominee for president in the 2024 election. He has made it perfectly clear that he rejects the democratic principles under which this country has always operated. He simply does not believe in real democracy. He does not want to be a legitimately elected servant of the American people. He wants to be an American dictator. He wants to use the power of the federal government to persecute his political opponents. He considers opposing him politically to be criminal. He openly admires authoritarian and dictatorial rulers like Viktor Orban, Vladimir Putin, and Kim Jong Un. He has said that if again elected president he intends to be a dictator, though he has claimed he’d be that only on his first day in office, a claim no reasonable person can believe he actually means. He makes no bones about the fact that he wants to turn the United States Department of Justice into his person law firm and to use it for political not legal purposes. He still insists that he won the 2020 presidential election and that his victory was somehow stolen from him though there is not one shred of factual evidence to support that claim. There is no reason to believe that he would leave the presidency willingly and peacefully at the end of another term.

Another of this country’s founding principles has been that every person in the country has certain legally guaranteed rights. The US Constitution establishes those rights, and they have been implemented by Congress and interpreted and applied by the federal courts. They are constitutionally inviolable. Trump does not believe that people who oppose him have any rights at all. Most particularly, emigrants into this country, especially those who are people of color, have no rights at all for Trump. He has said that he wants to build huge detention facilities, to put everyone who is in in this country seeking asylum (and no doubt other immigrants as well) into them, to deport hundreds of thousands if not millions of people, and to do it without due process of law. Trump is both a racist and a misogynist. Another Trump presidency would put the rights of people of color and of all women at serious risk. Trump could now trample those rights without fear of criminal prosecution even if he committed crimes in his attacks on them.

A couple of important questions now arise. One is: How could the Supreme Court make such an outrageous and outrageously wrong decision? The answer to that question surely is that the Court is acting today not on the basis of the law but on the basis of political preference. Donald Trump nominated three of the six justices who made up the majority that determined the court’s decision in the case. Other Republican presidents nominated the other three. It is no secret that Trump’s defense in the criminal cases against him consists mostly of engineering as much delay in the resolution of the cases as he can. The Supreme Court took months to issue its decision in this case. We know that the Supreme Court can act quickly, at least by court standards, when it wants to. Clearly, it did not want to in this case. The only possible explanation of the delay is that the court’s majority wanted to benefit Trump as much as possible. The court’s incomprehensible decision in the case just affirms that conclusion. The Supreme Court’s decision is inexplicable legally. It is quite explicable politically.

Another important question is: What, if anything, can we do about this horrendous decision? One way to avoid the decision’s predictable, immensely harmful consequences is to make sure Donald Trump never becomes president again. Unfortunately, as of today, keeping Trump from winning the election this coming November appears to be an uphill battle. Trump has a solid, fanatical base in his MAGA movement. He leads Biden in the polls if only by a little bit.

Perhaps even more importantly, Joseph Biden has been a very good president, but he is a very bad candidate. Most of the time he is far from charismatic. A majority of Americans have been concerned about Biden’s age for a long time. He is 81 years old. He will turn 82 fifteen days after the 2024 presidential election. Then in the recent “debate” he had with Trump on CNN, Biden performed horrifically badly. He performed so badly that a great many people, including some Democratic politicians, want him to withdraw from the race. So far Biden insists he won’t do it, and he very probably won’t. Moreover, it is not clear that any Democratic candidate who replaced him on the ticket would have a better chance of beating Trump than Biden does. The most likely replacement for Biden is Vice President Kamala Harris, but she does even worse in the polls against Trump than Biden does. We must deal with the probability that on January 20, 2025, Donald J. Trump will once again be president of the United States. The American electorate is unlikely to save us from the Supreme Court’s ruling on presidential criminal immunity.

The other way to avoid the dreadful consequences of the Supreme Court’s grant of criminal immunity to the president is to have the court overturn its decision. This Supreme Court will, of course, never do that. No Supreme Court on which the majority of justices have been nominated by Republican presidents is likely to do it. Therefore, if it is to happen at all, we’ve got a long wait ahead of us.

There is also the question of how the question would ever come up before the Supreme Court again. Because of the Constitution’s double indemnity clause, the prosecution in a criminal case can never appeal a final court decision in favor of a criminal dependent. It can file an interlocutory appeal of a decision that doesn’t resolve the question of the defendant’s guilt or innocence, but no appellate court is required to accept and hear such an appeal.

There is one way in which the ruling on presidential criminal immunity could come up before the court nonetheless. The Supreme Court’s decision creates the very real possibility that in some future case the question of whether a president’s alleged actions were official nor unofficial could come up. Both a final judgment in favor of the prosecution and an interlocutory decision in favor of either party could come before the Supreme Court. One way for a future court to resolve such a case would be to overrule the immunity decision in US v. Trump. We would have to have a Supreme Court more committed to the rule of law than the current one is, but this scenario is at least a possibility at some point in the distant future.

On the Fourth of July, Americans celebrate both national independence and the principles on which our independent nation is founded. We have never lived fully up to those principles. We never did it in the past, and we don’t do it today. Yet that we may someday live up to them is the hope of every American who truly loves their country. Donald Trump not only would not lead us in the direction of making our principles reality, he would lead an all-out assault on those principles; and the Supreme Court has now given him carte blanche to do it without fear of criminal liability.

Our Fourth of July celebration takes on especially important meaning this year. Only we American people can stop Donald Trump from creating an American fascism, from replacing foundational American legal principles with wholly un-American fascist ones. Only we American people can stop Donald Trump from making the president a dictator. We can save our country from Donald Trump and his fanatical, unthinking MAGA supporters, but we can do it only if all of us who value our American principles rise in defense of those principles. Perhaps today the Fourth of July can inspire us to do so. If it doesn’t, it may be the last true Fourth of July we ever celebrate.

On the Criminal Immunity of the President

 

On the Criminal Immunity of the President

July 1, 2024

Today the United States Supreme Court issued its opinion in the case of The United States of America v. Donald J. Trump on the issue of presidential immunity from criminal prosecution. According to news reports, the court held that the president has absolute immunity from criminal prosecution for “official acts” committed while president. “Official acts” apparently means acts connected to the “core constitutional responsibilities” of the president. What “official acts” actually are, and what the “core constitutional responsibilities” of the president are, is difficult to determine at best. This is the kind of legal language that leads to years of motions, countermotions, and appeals in cases to which the legal language applies. The Supreme Court today doomed us to years of such legal maneuvering.

In the election interference cases against him in the federal court in Washington, DC, and in a state court in Georgia, Trump will no doubt claim that everything he did that had anything to do with the 2020 presidential election or the January 6 insurrection was official and within his core constitutional responsibilities as president. The federal and state prosecutors in those cases will no doubt claim none of those acts was official or within Trump’s core constitutional responsibilities as president. The courts in those cases will have to rule on those claims. Whichever side loses will certainly than appeal, and years of litigation will follow.

As nearly as I can tell from news reports, the key question here is: What are the core constitutional responsibilities of the president? Under today’s decision, the president is immune from criminal prosecution if the act in question legitimately relates to those core constitutional responsibilities. The obvious place to look for what those core constitutional responsibilities are is Article II of the United States Constitution. That Article creates the office of the presidency, provides for how the president and vice president are elected, and specifies what the president is authorized to do.

Article II:

·        Makes the president the Commander in Chief of the army and navy and of the state militias when they are called into the actual service of the United States.

·        Gives the president the power to make treaties with the concurrence of two-thirds of the Senators “present,” presumably meaning present when the Senate votes on the treaty.

·        Gives the president authority to nominate, and with the consent of the Senate appoint, ambassadors, other public ministers and “Counsels,” judges of the Supreme Court, and all other officers of the United States whose appointment is not otherwise provided for.

·        Authorizes the president to fill vacancies in the federal government with acting officials acting for a specified term without the consent of the Senate.

·        Provides that the president “shall take care that the laws be faithfully executed.”

·        Authorizes the president to “commission” all of the officers of the United States.

Article II, Section 2, also charges the states with choosing the “electors” who will be the ones who actually elect the president and vice president every four years. Article II says nothing more of significance about what the president’s responsibilities, powers, and duties are.

Most of these provisions of Article II are quite specific, but there is one of them that is not. The Constitution says that the president shall “take care that the laws be faithfully executed.” Just what that phrase means is far from clear. Perhaps it’s clear enough that “executed” means put into effect and enforced. But what does “faithfully executed” mean? That, it seems to me, is far from clear. That provision, I fear, opens an enormous can of worms in Trump’s election interference cases. Trump will no doubt claim that when he sought to overturn the results of the 2020 presidential election, he was simply seeing that the election laws were faithfully executed. He can claim that he honestly believed that the election officials of various states had not faithfully executed Article II, Section 2, of the US Constitution and that, therefore, it was incumbent on him to step in and see that that section of the Constitution was faithfully executed.

There are at least two problems with that assertion. First, the Constitution only requires the states to appoint electors “in such Manner as the Legislature thereof may direct.” Under this provision, how a state chooses its representatives in the electoral college is a matter of state law not federal law. When the Constitution charges the president with seeing that the laws are faithfully executed, it can mean only federal laws. The Constitution gives the president no power over state election or any other kind of state law at all. Therefore, what Trump did with regard to the 2020 election can in no way be excused as official acts relating to the president’s core constitutional responsibilities under Article II, Section 2.

In addition, engaging in illegal acts such as a conspiracy against the US government and unleashing a violent mob on the United States Capitol as the members of the Senate and the House gathered to fulfill one of their constitutional duties in an effort to overturn election results that a state has declared to be valid is hardly seeing that the laws are faithfully executed. When a state submits its slate of electors to the federal government it certifies, in effect at least, that its election laws were faithfully executed with regard to the subject election. Any political candidate can file suit in court in an effort to establish that the election result of a particular state was somehow invalid. Trump did that something like sixty times after the 2020 election. He lost those cases because there was not one shred of evidence of the fraud he alleged had taken place and that had supposedly corrupted the election result. There are no other legal means for a defeated candidate to challenge the results of an election. It simply cannot be legitimately contended that the Constitution gives the president the authority to engage in illegal acts, such as forming a conspiracy to challenge valid election results by having a state submit false sets of electors to the federal government and as inciting a violent resurrection, the way Trump and his minions did so many times in late 2020.

Yet, again, the issue here is not what is true legally or factually. It is what Trump can claim is true in an attempt to bring his actions with regard to the 2020 presidential election under the immunity the Supreme Court today gave the president. The majority of the present United States Supreme Court has established both in how it handled Trump’s immunity claim procedurally and in today’s absurd decision that it will do everything it can to help Donald Trump be elected once again as president of the United States. This court cared a lot that the US Constitution does not specifically mention abortion when it overturned Roe v Wade. It seems to care not at all that the Constitution nowhere says the president is immune from prosecution for criminal acts undertaken as president.

The Supreme Court apparently tried to draft today’s decision on presidential immunity as to avoid the claim that it put the president above the law, but putting the president above the law is precisely what this appalling decision has done. In a country governed under law, no person can be above or beyond the reach of the law in any way. Today, the United States Supreme Court said the president is immune from criminal prosecution for official acts. That outrageous ruling puts the president above the law. It creates the possibility of true presidential tyranny of the type Trump wants to implement. Our country is worse off for this decision. This decision puts our democracy at risk. Just how destructive today’s decision turns out to be in practice remains to be seen, but its effect can in no way be good. This decision has continued this Supreme Court’s actions what have destroyed public trust in and respect for the court. For today’s decision all we can say to this court is: Shame! Shame! Shame!