by Kenin M. Spivak
Reasonable constitutional scholars and jurists could quibble about the details and impact of the Supreme Court’s immunity decision in Trump v. United States, but the hysteria coming from the left, including President Joe Biden and dissenting Justices Sonya Sotomayor and Ketanji Brown-Jackson, is beyond rational discourse. An inability to control emotions and anger has become commonplace for progressives who don’t get their way.
Writing for a 6-3 majority, split on ideological lines, Chief Justice John Roberts’ opinion laid out a three tiered approach to presidential immunity premised on the Constitution’s vesting of the complete executive power in one individual, giving him duties and power of “unrivaled gravity and breadth” and making that individual a full and equal branch of the United States government, alongside the Congress and courts. Roberts observed that the president’s constitutional powers are often “conclusive and preclusive” and those powers may not be subject to review by Congress or the courts.
The majority rejected that the absence of precedents granting criminal immunity to the president supported the conclusion that the president is not immune. Rather, Roberts observed that in there are no precedents because no previous president had ever been indicted. The majority considered Nixon v. Fitzgerald (1982), which granted the president immunity from civil actions, and a range of cases which have held that the president must generally comply with discovery requests.
The majority held that “[U]nder our constitutional structure of separated powers, the nature of Presidential 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. As for his remaining official actions, he is also entitled to immunity. At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient.”
The Court ordered District Court Judge Tanya Chutkan, who is presiding over the federal election fraud case, to evaluate the indictment to determine the acts in the indictment for which Trump could be liable based on its decision. In doing so, the Court instructed Chutkan that immunity would apply to the “outer perimeter” of a president’s official responsibility, and to any actions that, if challenged, could divert the president’s attention or make him unduly cautious during the decision making process. As to unofficial actions, the Court ordered that no inquiry be made into the president’s motivations, and no actions subject to immunity may be used as evidence, or to evaluate the unofficial acts.
The Court also held that a president may challenge an indictment for violating his immunity before the trial proceeds, rather than on appeal. Responding to expected criticism that the process would delay any trials, Roberts repeatedly chastised Chutkan and the D.C. Circuit, observing that: “Despite the unprecedented nature of this case, and the very significant constitutional questions that it raises, the lower courts rendered their decisions on a highly expedited basis,” and failed to “analyze the conduct alleged in the indictment to decide which of it should be categorized as official and which unofficial,” or make a complete record.
The essential fact is that the right to a speedy trial is for the benefit of the defendant, not a prosecutor who indicts and prosecutes a case based on the election calendar.
In his concurring opinion, Justice Clarence Thomas raised strong concerns with whether Jack Smith’s appointment as special prosecutor violates the Constitution. That issue currently is being considered by District Court Judge Aileen Cannon in the Florida classified documents case. In short, the objection is that Smith was neither nominated by the president and approved by Congress, nor appointed by Attorney General Merrick Garland to a position created by statute. If Trump is successful in his challenge to Smith’s appointment, both federal cases would be thrown into disarray.
Democrats have reacted to the Court’s decision as a MAGA conspiracy. Senator Dick Durbin and other Democrats insist it is tainted because Justices Samuel Alito and Clarence Thomas participated, despite holding conservative views. Alexandria Ocasio-Cortez announced plans to introduce articles of impeachment against the Justices. President Biden, who just a month ago said “It’s reckless, it’s dangerous, it’s irresponsible for anyone to say [the Trump hush money trial] was rigged just because they don’t like the verdict,” condemned the Supreme Court for setting a “dangerous precedent” and delaying Trump’s trial, underscoring the importance of the trial calendar to Biden’s election effort.
Akin to the Court’s failing in Roe v. Wade, the Court’s ruling here may be criticized for creating a detailed, legislation-like structure based on general principles. By delegating to Chutkan the task of analyzing the indictment, the Court has virtually assured an appeals process that will culminate in an even more nuanced decision by the Court on the rules for when non-core duties and unofficial acts are immune. This is the beginning, not the end of a process that Justice Neil Gorsuch calls a ruling “for the ages.” By contrast, Democrats care only about jailing one man, Donald J. Trump.
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Kenin M. Spivak is founder and chairman of SMI Group LLC, an international consulting firm and investment bank. He is the author of fiction and non-fiction books and a frequent speaker and contributor to media, including The American Mind, National Review, the National Association of Scholars, television, radio and podcasts. He received his A.B., M.B.A., and J.D. from Columbia University.
