“With fear for our democracy,” Justice Sonia Sotomayor concludes in her brilliant dissent in Trump v. United States, “I dissent.”
She is right. Very frighteningly right.
After reading what happened at the oral argument, I knew what was coming. The court was looking for a way to carve up the baby, giving some form of immunity to former President Donald Trump without turning him into the absolute monarch.
But even I didn’t expect the breadth of Chief Justice John Roberts’ opinion for the court, which effectively does almost that, with its distinction between official acts, which are “presumptively immune” from prosecution, and unofficial acts, which are not. Because the motive of the president in acting illegally cannot be considered, as Sotomayor wrote in dissent, “the category of presidential action that can be deemed ‘unofficial’ is destined to be vanishingly small.” And to take forever, on remand to the district court, and in the endless appeals that will no doubt follow, to definitively figure out. Certainly, long enough for it to amount to a get-out-of-jail-free card if Trump is the president-elect.
Indeed, it is enough to postpone his sentencing for the 34 felony counts of which he’s already been convicted. It took Trump’s lawyers no time at all to claim that paying off a porn star to keep silent about her affair with him before he was president (and thereby rigging the election) was an “official act” because he signed the reimbursement check to Michael Cohen while he was in the White House. It’s a ridiculous argument which hopefully Judge Juan Merchan will recognize, but not so ridiculous that Merchan wasn’t willing to delay sentencing for another two months. And count on Trump’s lawyers to try to postpone it even longer if the judge does reject it.
And don’t make the mistake of thinking that this is the result of a “conservative” court simply relying on the intent of the founders. Sotomayor made clear that they were doing no such thing. “The Framers clearly knew how to provide for immunity from prosecution,” she writes, “They did provide a narrow immunity for legislators in the Speech or Debate Clause (of the Constitution).”
But nothing about the president, a point the chief justice simply ignores, as he does the part of the Constitution that says that an official impeached and convicted by the Senate “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” The impeachment clause “clearly contemplates that a former President may be subject to criminal prosecution for the same conduct that resulted (or could have resulted) in an impeachment judgment — including conduct such as ‘Bribery,’ which implicates official acts almost by definition.”
As for the Founding Fathers, the chief justice also ignores Alexander Hamilton’s commentary in the Federalist Papers that former presidents should be “liable to prosecution and punishment in the ordinary course of law.” The Founding Fathers knew full well about the power of monarchs, and in Hamilton’s words, distinguished between “the king of Great Britain,” who was “sacred and inviolable,” and the “President of the United States,” who “would be amenable to personal punishment.” The majority opinion recognizes no such distinction.
As Sotomayor sees it, the majority’s approach is clear: “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.”
Roberts ignores the examples cited by his dissenting colleagues as thoroughly as he ignores the originalism that he and his colleagues purport to be guided by.
No, this is not a principled court but an entirely partisan one, and a chief justice who has failed in whatever mission he once pretended to have to protect the legitimacy of the court. This is Bush v. Gore, the opinion that did the most to undermine the court in public polls of any decision in recent history. This is an utterly partisan court, doing its best to elect a president on a 6-3 vote.
I was once one of those who was skeptical of Democratic proposals to tinker with the court’s composition (also known as court-packing) or its lifetime terms (also known as term limits) because I clung to the belief that the court should be protected from ideological manipulation.
No longer. I’m for anything that would shake up a court that has, with utter disregard for ethical constraints and the need to retain public trust, engaged in ideological manipulation of its own.