When the delegates to the Constitutional Convention debated the role of the chief executive, many expected George Washington to become our first king. Between Mr. Washington’s humility and the delegates’ recent experience with a king, they decided we’d be better off with a president. With the recent case of Trump v. United States, many have asked: Have we turned the office of president into the office of king?
Background
On Jan. 6, 2021, Congress had met to witness the counting of the ballots from the presidential electors, commonly known as the Electoral College. Many people had issues with how the preceding election had been handled (myself included). Some of them showed up at the Capital to both display their displeasure and, for some, to seek redress of their grievances. One of those who was there was then-President Donald J. Trump.
Before we go further, I think it’s important to point out a certain misconception, one that is repeated frequently. I said Congress was in session to witness the counting of the ballots, not to certify the election, as is often claimed.
the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;
U.S. Constitution, Amendment XII
Congress is there to observe, not certify, the counting of the ballots. The two houses are also present in case no one gets a majority of votes for either president or vice president.
The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.
U.S. Constitution, Amendment XII
While this fact is not directly related to the case, what Congress was doing Jan. 6, 2021, is so often misrepresented by the court, the media and pundits, I thought it worth correcting the record.
The Case
This particular case started with an indictment for Mr. Trump regarding his actions on and around Jan. 6.
A federal grand jury indicted former President Donald J. Trump on four counts for conduct that occurred during his Presidency following the November 2020 election. The indictment alleged that after losing that election, Trump conspired to overturn it by spreading knowingly false claims of election fraud to obstruct the collecting, counting, and certifying of the election results. Trump moved to dismiss the indictment, arguing that a President has absolute immunity from criminal prosecution for actions performed within the outer perimeter of his official responsibilities, and that the indictment’s allegations fell within the core of his official duties. The District Court denied Trump’s motion to dismiss, holding that former Presidents do not possess federal criminal immunity for any acts. The D.C. Circuit affirmed.
Trump v. United States
The Supreme Court, however, disagreed, saying that Trump indeed does have immunity.
Held: Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.
Trump v. United States
The court based its decision on the doctrine of separation of powers. Under the Constitution, each of the three branches of government are given specific powers which only they can exercise. The court expands on this in its opinion.
This case is the first criminal prosecution in our Nation’s history of a former President for actions taken during his Presidency. Determining whether and under what circumstances such a prosecution may proceed requires careful assessment of the scope of Presidential power under the Constitution. The nature of that power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute.
Trump v. United States
Interesting that the court claims immunity is a question of separation of powers, because the court ignores the fact that the powers are vested in the office, not the person holding it at any point in time.
This is an historic case—not simply because a former president is accused, but also the circumstances under which he was indicted. Let’s start with whether or not such a prosecution should move forward.
Article II of the Constitution vests “executive power” in “a President of the United States of America.” §1, cl. 1. The President has duties of “unrivaled gravity and breadth.” Trump v. Vance, 591 U. S. 786, 800.
Trump v. United States
The Constitution does vest the executive power of the United States in its president, but the duties that Constitution vests are not unrivaled in gravity or in breadth. For example, the President is the Commander in Chief of the Army & Navy (Article II, Section 2, Clause 1), but it is Congress that sets the rules for the military (Article I, Section 8, Clause 14). The President can sign treaties and make appointments, but only with the advice and consent of the Senate (Article II, Section 2, Clause 1). Notice, in the quote above, this court points to the Constitution for the President’s executive power, but to another court when discussing its gravity and breadth.
Yes, the President’s power comes from the Constitution, but nowhere does the Constitution give the President absolute immunity from criminal prosecution.
When the court looks at the Framers’ design of the Presidency, it appears their view is myopic. As the dissent pointed out:
At the Constitutional Convention, James Madison, who was aware that some state constitutions provided governors immunity, proposed that the Convention “conside[r] what privileges ought to be allowed to the Executive.”
Records of the Federal Convention of 1787, p. 503 (M. Farrand ed. 1911)
Other commentators around the time of the Founding observed that federal officials had no immunity from prosecution, drawing no exception for the President. James Wilson recognized that federal officers who use their official powers to commit crimes “may be tried by their country; and if their criminality is established, the law will punish. A grand jury may present, a petty jury may convict, and the judges will pronounce the punishment.” . . . This historical evidence reinforces that, from the very beginning, the presumption in this Nation has always been that no man is free to flout the criminal law.
Trump v. United States – Dissent
Contrary to the court’s opinion, not only is presidential immunity not included in the Constitution, but apparently the idea of privilege was rejected during the convention. The evidence shows that the idea of immunity for any office was downright offensive to those who drafted and commented on the Constitution.
What about the consequences of the President’s actions? Shouldn’t someone with the presidential powers consider the legality of their actions? Is there not a need to worry about the impact of one’s actions, especially if those actions are criminal? Shouldn’t the court’s dominant concern be about the application of the law, rather than covering over the bad actions of the President?
The court has yet to provide a constitutional argument of how the separation of powers places anyone’s actions above review. What this court has done is promote the opinion of previous judges, unsupported by law or Constitution, above the supreme law of the land, and create a privilege for the President that was rejected by the federal convention.
Presidents therefore cannot be indicted based on conduct for which they are immune from prosecution.
Trump v. United States
The court never answers what appears to be the most important question. How can we know if a president’s conduct is immune from prosecution if the deciders of facts, the courts, are not allowed to look? The court’s position not only creates a self-fulfilling prophecy, but an active immunization of any president for his actions while in office.
The court admits that their position is not based on the Constitution.
True, there is no “Presidential immunity clause” in the Constitution. But there is no “‘separation of powers clause’” either.
Trump v. United States
The Constitution clearly spelled out that each branch—the legislative, executive and judicial—are vested with specific and separate powers, hence, the “separation of powers” principle. But those powers are vested in offices, not the people in them. Furthermore, Article III not only vests the judicial power of the United States, it set their jurisdiction as well.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;
U.S. Constitution, Article III, Section 2, Clause 1
How can the court have jurisdiction in all cases in law and equity if this court exempts the President from said jurisdiction?
As the court points out, the Impeachment Judgment Clause specifies:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
U.S. Constitution, Article I, Section 3, Clause 7
If the Impeachment Judgment Clause states that a president can be subject to trial after impeachment, how can the court claim he is immune from answering for such crimes? That doesn’t make sense.
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.
Trump v. United States
All of those actions, and plenty more, are part of the core official powers of the President, and expressly illegal.
Justice Sotomayor dissented to the court’s opinion, and was joined by Justices Kagan and Jackson.
Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. . . . Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent.
Trump v. United States
While I rarely agree with Justice Sotomayor, I agree with most of what she said here. It is this court, not the Constitution, that is granting immunity to the President. It does place the office of president above the law by preventing prosecution.
Conclusion
What can we conclude from this historic decision? First, we have yet another example of the court simply making up laws out of thin air. The court claims that the separation of powers grants the President immunity, but said immunity actually contradicts the separation of power by preventing the judicial branch from doing what it is constitutionally bound to do.
The court is ignoring the Constitution. The separation of powers is just that, separation of powers, not the isolation of the branches of government. By claiming the executive has power to evade the power of the judiciary, it is the court that is violating separation of powers.
The court’s disregard of the Constitution goes far beyond Donald Trump and his Jan. 6 actions. Consider the attacks against pro-lifers advocates, parents, traditional Roman Catholics, and so many more by the Biden Administration’s so-called Department of Justice. The armored raid of people’s houses who are accused of misdemeanors, the targeting of political opponents as potential domestic violent extremists, and the coercion of social media outlets to suppress information; those acts are deprivation of rights under color of law, and federal crimes. If any of those acts can be tied back to Joe Biden, that would make him a conspirator, and criminally liable under §241. But according to the court, Mr. Biden is immune from prosecution, and effectively immune from investigation, since there’s no need to investigate a crime that cannot be prosecuted. It’s not just Joe Biden; thanks to this court, any president who may have committed crimes cannot be held legally accountable.
The court has protected criminal activity with its decision and the justices responsible should be held accountable. This court has effectively claimed that you have no redress of grievance against a president who commits a criminal act. They have conspired to deprive the American people of their right to seek redress under color of law. If this is the state of our republic, then someone should have told Benjamin Franklin that we were only able to keep it for about 230 years.
