Supreme Court comes up Trump’s
The immunity decision has divided opinion and demonstrated an inability of the judicial branch of US government to think clearly
When a lawsuit reaches the Supreme Court (or its equivalent in other jurisdictions) most people would expect the matter will decided by some of the best brains on the planet. Sadly, that isn’t always the case.
A few years ago, I wrote about the Grand Chamber of the European Court of Human Rights being flummoxed by the continuous nature of time. This week, it was the turn of the US Supreme Court to struggle with simple logical concepts.
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The Supreme Court’s decision – by a majority of six to three – to declare that a US President is entitled to a substantial degree of immunity is bound to evoke strong reactions, both for and against. I will try to suppress my personal biases about the decision and focus purely on an analysis of the reasoning.
Let’s start with the statement by the majority Justices (pro-immunity) disparaging the rationale of the minority (anti). Using language that a British judge would never use (at least, not in public) to dispute the analysis of a fellow judge, the majority said of the minority:
Coming up short on reasoning, the [minority] repeatedly level variations of the accusation that the Court has rendered the President “above the law”. [page 47, final paragraph]
This accusation is wrong, says one of the Justices from the majority:
A President ‘is not above the law’… [I]mmunity … is the law.
[page 59, final paragraph]
If you don’t think about it for too long, that sounds pretty convincing. But, pause for a moment and you realise that the statement “Presidential immunity is the law” translates to “It’s one law for the President and another set of laws for everyone else.” Isn’t that exactly the opposite of what we mean when we say “The President is not above the law”?
As the three minority Justices put it:
There is a twisted irony in saying, as the majority does, that the person charged with “tak[ing] Care that the Laws be faithfully executed” can break them with impunity. [page 88, first paragraph]
It’s not just a twisted irony: it’s a twisted logic.
OK, enough of the wordplay: let’s look at the majority Justices’ attempt to employ reason to support their decision. They start from a simple premise – one that, taken on its own, is perfectly plausible: the President should not “be chilled from taking the ‘bold and unhesitating action’ required of an independent Executive” [page 21, first paragraph].
It has long been established under US law that this “no chilling” doctrine gives the President immunity from civil liability, ie immunity from monetary claims from people or companies who might be disadvantaged by a Presidential decision. The majority Justices have now decided that the same principle must result in the President having immunity from criminal prosecution as well [page 21, first paragraph].
But nowhere in the judgment do the Justices consider whether granting this immunity would also incentivise individuals with malign intent to run for the Presidency knowing that four years of criminal immunity beckons – a protection that includes absolute immunity over any interaction at all that the President might have with the Department of Justice [page 29, first paragraph and the preceding two pages for context].
The closest that the majority Justices get to recognising adverse incentives is when they consider a hypothetical “future where the President ‘feels empowered to violate federal criminal law’”, only to dismiss this scenario as “fear mongering” [page 48, second paragraph]. It might well be fear-mongering if you start from the assumption that Presidents are good people who would never succumb to temptation even if they have been imbued with immunity. But, once that immunity is granted as a permanent state for all future Presidents, the incentives could change because the nature of the candidates could change.
This lack of completeness in their thinking is only the beginning. Until the Supreme Court handed down its decision, the multiple prosecutions of Trump served as a clear warning to those of a criminal disposition1 who might have put themselves in the Presidential spotlight as Trump had done: “misbehave and you will see no end to the consequences.” But not any more. The new message is “misbehave and it will all be OK.”
The majority Justices think that predictions of criminality by future Presidents is fear-mongering, but what do they think would happen without immunity? On this, the majority gives a very firm assessment:
[A]n 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.
[page 48, second paragraph]
I had to read that passage more than once. The concept of the Executive cannibalising itself is an odd one to grasp. But perhaps that is because, here in Britain, our Executive is a series of successive Governments, whereas the writer of the passage above is describing the US Executive Branch in terms of a single continuing entity. The Justices are saying that successive Presidents would (metaphorically) cannibalise their predecessor opponents.
But where is the evidence that could point to such an outcome? For over 200 years, forty-five American Presidents have believed that there was no immunity from criminal prosecution and yet government has not been chilled. We know that past Presidents have expected no immunity from prosecution for criminal acts: why else would Ford have pardoned Nixon without any commentators of the day saying it was unnecessary? And why all the speculation that Trump would attempt to pardon himself if it was known that he could not be charged?
And yet the majority Justices argue that, without immunity, Presidents would seek to prosecute their predecessors with no justification other than an improper desire to apply political intimidation. It hasn’t happened yet and the majority Justices make no attempt to suggest that it has.
To anyone who might argue that the prosecution of Trump is evidence that such behaviour has just started, one only needs to observe that the charges against Trump do not concern his policies in government - the “bold and unhesitating action[s]” that must not be chilled. The charges against Trump allege that he attempted to falsify the results of the 2020 election. Presidential elections don’t require the incumbent President’s action. Interference in the result is precisely the sort of behaviour that even this Supreme Court would want to see chilled. The granting of immunity does the opposite.
It is a further irony of the majority’s reasoning that their hypothesis cannot now be properly tested in a court of law. No court will enquire whether the Biden administration is cannibalising Trump or is it acting properly. It won’t happen because the Supreme Court’s decision means that many of the key criminal accusations are protected by the blanket of immunity that they have thrown over all Presidents. As much as the US Constitution decrees that a President in office is charged with enforcing criminal laws, it seems that the US Supreme Court doesn’t always want him to.
[This post was originally published with some additional paragraphs which contained repetitive content.]
Even if Trump’s 34 criminal convictions end up being overturned as a result of the immunity decision, it won’t alter the fact that a jury has determined that he acted in a manner that is criminal under the laws that apply to everyone else.