How We Get Past Trump v. US
In a shocking Supreme Court ruling, Trump has been purposely "emboldened" by a Majority Court that he hand picked and will now benefit from a new, dangerous legal definition of Presidential Immunity.
Huddle up, team — we are down by 14 points with only four months remaining in the half and we need to talk. Yesterday, the United States Supreme Court issued an outrageously partisan ruling that establishes presidential immunity for any sitting president, engaged in “official acts,” that will give the Executive too much leeway to break the law and not be held accountable. While it would be great for everyone to read the entire Trump v. Unites States decision, I would suggest that you first read the dissent by Justice Sonia Sotomayor — which begins on page 8 — and then read the entire ruling all the way through.
While there are several important ramifications of this ruling that need to be discussed, I am going to give a quick assessment of what the ruling means and focus on the more important topics at hand, which are: where do we go from here and what does this mean for the state of our democracy moving forward? It is important to understand the basics of how this new law will serve a president who is eager to abuse his authority. It is also good to remember that how certain executive acts will play out in the court system will only be predictions at best, and we won’t know until it happens.
The first question on everyone’s mind has to be: can Jack Smith continue to prosecute Donald Trump for his role in conspiring with Justice Department officials to pressure states into overturning the 2020 election results? The answer is complicated but can be best summarized by saying that this latest ruling ensures that a Trump prosecution will not happen before the November Election. The lower district court will now also have to examine some of the allegations contained in the indictment to determine whether they fall within this newly established scope of immunity. Ultimately, we don’t know yet if the case will continue, if at all.
Chief Justice John Roberts wrote the opinion for the majority, and he ultimately divided presidential conduct into three categories: official acts that are part of presidents' "core constitutional powers"; other official acts that are outside the presidents’ "exclusive authority"; and unofficial acts. Roberts determined that presidents have "absolute" immunity in the first “core powers” category, "presumptive” immunity, which is a reasonable basis for belief or acceptance for the second category, and “no immunity for the third."
The legal arguments in each case will hinge upon defining the act in question and placing that act within one of the three categories now established by the Supreme Court. While the Court does state that not everything a president does is “official” and there is “no immunity for [an] unofficial act,” the burden will be on the prosecution to prove that a sitting president is not acting officially while he holds the office.
It’s important to note that the majority in yesterday’s ruling did reject Donald Trump’s argument that he is entitled to sweeping, absolute immunity unless he is impeached by the House of Representatives and convicted in the US Senate — this result would have immediately ended Jack Smith’s current prosecution of Trump.
Instead the Court has said that former presidents have “sweeping legal protections from charges based on allegations from acts that fell within their official duties.” The bottom line is that the Justice Department can continue in their prosecution, but they are now hindered greatly by a completely new, made-up definition that favors a president, and works against the prosecution.
Justice Sotomayor’s dissent is important here, because she details every established law which this Conservative Majority has gone against to create this new standard of immunity. Then, she details the worst conclusions that can come to bear as a result. Perhaps the most meaty passage from Sotomayor is the following statement, which predicts that if Trump wins in 2024, and then "officially" instigates another insurrection in 2028 to overthrow the government to stay in office, he will be immune from prosecution:
“Looking beyond the fate of this particular prosecution, the long-term consequences of today’s decision are stark. The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. This new official acts immunity now “lies about like a loaded weapon” for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation. Kore- matsu v. United States, 323 U. S. 214, 246 (1944) (Jackson, J., dissenting). The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will 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.
Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.
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.”
So, while we know that the government’s prosecution of Donald Trump has been slowed to a crawl and will not happen in time to inform the electorate before a very important vote, and that it may still proceed after new determinations are made at the lower court level, we need to be collectively concerned about the legal can of worms this decision has now opened for the county.
This latest ruling has elevated the position of an elected official for the highest office in the land to that of a quasi-king, who can do whatever he pleases with little repercussion because he is president. The majority specifically addresses this intention when Roberts explains that they do not want a president to be encumbered by second guessing his own decisions saying:
“The danger is akin to, indeed greater than, what led us to recognize absolute Presidential immunity from civil damages liability—that the President would be chilled from taking the “bold and unhesitating action” required of an in- dependent Executive.”
After four years under the supposed leadership of Donald Trump, I can firmly state that the last thing we should be legally emboldening a sitting president with is the notion that they are insulated from culpability and are encouraged to not hesitate when making a decision. I think it is a fairly universal concept that any leader in a position of great power should hesitate before jumping into action and should be encouraged to think thoroughly about the consequences of his actions. But, six people on the Supreme Court have now decided otherwise.
It is easy to become overwhelmed by the myriad of unbalanced and flat-out erroneous rulings from a Supreme Court that was handed the majority by a reality TV star. It is easy to feel defeated by yet another setback in our attempt to create some sort of balance for a country that has become so divided in ideals and rhetoric. It is easy to let apathy take over and tune out from the task at hand, which should now be a focus on Court reform. It is much harder to fasten our resolve to fixing a complicated mess and straiten a trajectory that is wholly out of alignment. Nevertheless, it is our duty as Americans, who love this country, to protect what she stands for, and commit to strengthening our resolve to correct these mistakes which are solely based on hubris and ignorance.
The good news is that I fully believe that this latest decision will push more undecided voters to the Biden side of things and give them that much needed incentive for feeling good about their votes. Following the debate last Thursday, my greatest concern was for the voters who were undecided, and I wanted to know how that night altered their perceptions. It seems that most independent voters, who are hesitating to vote for Biden out of a lack of inspiration, could easily see how deceptive and false Trump is throughout all of his statements.
This latest horrible Court decision gives me hope that those still on the fence will now think about the extensive leeway the Supreme Court has just granted to the Executive — that Biden will not abuse in the next year — and then they will imagine a man like Donald Trump being in charge again. If this does not motivate them to vote for Biden, then nothing will.
While many of us can see the disaster well before it approaches, most humans prefer to take the path of least resistance and are not compelled to action until things have gotten unbearable for everyone. This is the problem that Democrats now face in pushing for Court reform — until the American people demand it, en masse, it will not become a priority for moderates who think they have more pressing issues that will hinder their own re-elections.
We need to reform the US Supreme Court by adding more judges to the bench and rotating the docket. This is a simple idea for a not so simple fix that will require a Constitutional Amendment at a time when we will be lucky to have a slim majority. This means we will have to elect Democrats, in mighty numbers, who are willing to pursue court reform, to do the job. Sadly, based on the political history of our country and the basic nature of human behavior, it will likely take even more to push the dial back to center. Buckle up, this is just the beginning of a very long road to reform.
Amee Vanderpool writes the SHERO Newsletter, is an attorney, published author, contributor to newspapers and magazines, and an analyst for BBC radio. She can be reached at avanderpool@gmail.com or follow her on Twitter @girlsreallyrule.
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