When we feel our treatment by our rulers has become so intolerable, so unjust – so inhumane – that we must declare our independence among the peoples and nations of the world, it just makes sense that we should explain to the rest of the world why we are doing it. Here goes.
–Pat’s paraphrase of the preamble to the Declaration of Independence
The Founding Fathers then laid out the Declaration of Independence of the 13 “united States of America” which included the self-evident truths of the “unalienable” rights that they believed are the birthright of all humans. Point by point, they laid out their grievances against George III and insisted they had made every good faith effort to resolve differences peacefully. They explained that they had appealed to the goodness and mercy of “our British brethren” to end the mistreatment from which they suffered, but found them unresponsive. And in light of those facts, they declared to the world that they and their fellow Americans were going into business for themselves. The war that had begun the previous year was concluded by treaty in 1783; by 1787 a new Constitution of the United States was approved on behalf of the people of the new nation “in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity…”.
That legal framework set out principles to guide our development and our lives, including the principle that no man is above the law. That idea had a pretty run there, right up until last Monday when the Supreme Court of the United States decided that presidents and former presidents of this great country were effectively kings or queens. And despots, if they choose to be.
Immunity from prosecution. The Justice Department has a policy that no sitting president can be prosecuted while in office, but there was no law that said that, and nothing explicit in the Constitution says a former president is immune from prosecution for officials acts taken while in office. The high-minded concept was that a president was a person given certain powers to exercise – temporarily – on behalf of his country and in its best interests, and who would then return to his life as a regular citizen. Would President Gerald Ford have granted Richard Nixon a pardon after his resignation over Watergate crimes if anyone had thought that the former president was immune from prosecution? No one before has ever had the temerity to claim he had immunity from prosecution…or quite frankly, the need for immunity…before you know who.
A man made famous as much for his over-use and abuse of the legal system as for his dubious business skills that necessitated all the suing and threats of suing had nothing to lose and everything to gain (and no shame) by making an unsupported legal claim that had the desired effect of delaying his trial on felony charges of trying to overturn the legitimate results of the 2020 election. The trial court judge hearing this case rejected the claim of immunity, so did a unanimous panel of the U.S. Court of Appeals. The Supreme Court…well, the Supremes (1) surprised many when they agreed to hear the case at all, causing a delay until (2) they heard oral arguments April 24 and then (3) “deliberated” the rest of April, all of May and all of June – more than nine weeks – before issuing the ruling. Guess it takes a while to create a whole new right not found in the Constitution, especially when you had said yourself, under oath, that such a right did not exist:
Hmmm…same folks who said Roe v. Wade was settled precedent. Interesting…
The idea proposed by Trump lawyers in oral arguments was that immunity is needed to protect former presidents from being corruptly prosecuted by their successors; whether or not that is true, there was no such right in the Constitution until this court created it with this ruling. When was the last time you saw a former president pursued in the legal system by a previous president? (If you said Biden is doing it to Trump right now, that is the wrong answer; he’s not.) You haven’t seen it before: not even the lawless Trump went after Barack Obama or his other predecessors! The assertion that this is a real and dangerous prospect is based on nothing in law or custom or history; it is a projection from Trump’s narcissistic personality disorder wherein he knows what he wants to do to Joe Biden and to every other perceived enemy, and his fevered brain assumes that’s how everyone else operates, too.
Not only did the court create a right that wasn’t there (don’t you just hate those activist judges that Republicans have been warning us about?) but, as argued by Thomas Wolf of the Brennan Center for Justice, “The Court has created an elaborate system of ambiguous rules that will not only ratchet up the complexity of the case against Trump but also erode the checks on presidential illegality. It is both a roadblock to prosecution and an encouragement to more insurrection.”
The procedures the Court has crafted to go with [the new rule] are pitched in Trump’s favor. Whenever the case returns to Judge Tanya Chutkan’s trial court, Trump will be presumed immune by default; the burden will be on the prosecution to establish that he isn’t. The Court’s definition of “official acts” cuts extremely broadly, stretching to “the outer perimeter of [Trump’s] official responsibility.” (The Court refused to say exactly where that perimeter ends.) The prosecution must show that prosecuting Trump for those official acts “would pose no dangers of intrusion on the authority and functions” of the presidency (emphasis added). The prosecution won’t be able to claim an official act was “unofficial” because of the president’s motives for doing it. (emphasis added) And Trump can seek another round of appellate review if the trial court doesn’t rule him immune. Should the government clear these hurdles, it won’t be able to use the “testimony or private records of [Trump] or his advisors” about official acts to prove his guilt. (emphasis added)
The Court justifies all this new complexity as necessary to protect imaginary future presidents from imaginary future prosecutions. It does not, critically, justify it as a response to the acts of the real and credibly accused former president in the case before it. Just as members of the Court’s conservative supermajority consistently steered the conversation at oral argument away from Trump’s charges, they do not even try to grapple with the bigger implications of applying their new rule to the case in front of them or the consequences if their rule ultimately lets Trump skate. Instead, the Court bows out of the case with the tidy but myopic claim that it “cannot afford to fixate exclusively, or even primarily, on present exigencies,” lest “transient results” threaten “the future of our Republic.”
The Court doesn’t engage with the ramifications of its opinion, because it can’t — at least not without exposing the fundamental bankruptcy of the whole edifice it has just built. The majority’s ruling cannot possibly be the rule for any functioning democracy. Trump has been charged with attempting to overthrow the election that threw him out of office. Any rule that would grant a president immunity for that crime would remove the principal check on presidential abuses of authority in our democratic system: the vote. And it would encourage other losing candidates to try the same in future elections. (emphasis added) It is in this sense that the Court’s opinion is truly lawless. It does not merely invent constitutional rules that are antithetical to our founding commitments or enduring values. It threatens to free presidents from the constraints of law and democracy. And it paves the way for future presidents to try to make good on the most antidemocratic of all propositions: might makes right.
In reaching to resolve future imagined cases of presidential criminality while downplaying the actual criminality before it, the Court has imperiled accountability for Trump’s wrongs. It has done severe violence to our law. And it has left our democracy exposed.
Look at what Trump did while president – I mean, just the things we know he did – when there was no presumption of immunity from later prosecution; just what the hell do you think he’ll do next time if given the chance? What about his calls for televised military tribunals of Liz Cheney and other enemies? Immunity! What about all the assaults on our system being planned by his supporters behind Project 2025? Immunity!
And what about this threat from the president of the Heritage Foundation that “We are in the process of the second American Revolution, which will remain bloodless if the left allows it to be.”? Uh, do what we want and you won’t be hurt? Really?
And this whole depressing development comes on the heels of a televised “debate” in which we saw one candidate for president lie his ass off for 90 minutes and the other look like an elderly deer caught in the headlights; Biden is now telling Democratic governors he’s fine but needs to stop working by 8 p.m. I got the feeling this is going to get even weirder.
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