REVERSING HISTORY 

George III is laughing in his grave.

It took 248 years but America finally decided it wants a monarch after all.  

Or at the least the Supreme Court has made that decision.

The rest of us must now endure it for some foreseeable future.  

It is unclear how many presidential crimes we will also have to endure along the way.  

If Trump is elected this November, the sky may well be the limit. 

You can rest assured he will not be prosecuted for the attempted coup he orchestrated in the aftermath of the 2020 election.  You can also rest assured that, armed with a veritable handbook on how to turn America into the authoritarian fascist state he longs for, Trump's sycophants and institutional toadies will exploit the Court's idiotic endorsement of l'etat, c'est moi to give him precisely what he wants.

That is the immediate effect of Monday's Supreme Court decision in Trump v. United States.

The long-term effects are even worse.

In forty-two pages of judicial sophistry, John Roberts vacated the decisions of two lower courts that had declared Trump not immune from prosecution for having orchestrated his attempted coup.  

None of this Court's usual sources provided any basis for doing so.  

The text of the Constitution does not make former presidents immune from criminal prosecution.  In fact, it provides for the exact opposite in the so-called Impeachment Clause, which states that even a president convicted by the Senate on impeachment "shall nevertheless be liable for and subject to Indictment, Trial, Judgment and Punishment, according to Law."  

Nor does history, this Court's other go-to source on all questions constitutional, support in the least any grant of immunity.  

Again, the opposite is the case.  

At the time of the founding, a number of states had constitutions that gave their executives (i.e.,governors) immunity from criminal prosecution.  The Founders, however, decided not to do so. This was not all that surprising.  The country had just won a Revolutionary War separating itself from a regime where its executive, namely, the King, was immune. The Founders were not remotely interested in resurrecting that disaster.

At this point, Roberts and his Republican-appointed colleagues should have given up the ghost, affirmed the two lower courts' denial of immunity, and allowed the case against Trump to go forward.

But they didn't.

Instead, based on a problem that does not exist . . .

They created a solution that will make things worse.

Far worse.

The non-existent problem is that criminal prosecutions of former presidents will somehow cripple the Executive Branch.  As Roberts put it, under "'the pall of potential prosecution", "the hesitation to execute the duties of his office fearlessly and fairly . . . raises 'unique risks to the effective functioning of government."

"A President inclined to take one course of action based on the public interest," he said, "may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office. And if a former President's official acts are routinely subject to scrutiny in criminal prosecutions," he continued, "'the independence of the Executive Branch' may be significantly impaired."

There is, however, no evidence whatsoever that this problem has ever existed.

None.

No former president has ever said or even implied that he made or hesitated to make any decision because he feared he was violating the criminal laws or would be held accountable for any putative violation once he left office.

Not Nixon for bombing Cambodia, Jefferson for the Louisiana Purchase, Jackson for the "trail of tears", Lincoln for ending habeas corpus, Reagan for Iran-Contra or Bush II for approving enhanced interrogation techniques.

Nor has any presidential historian ever found any president who deemed this a risk.

This is not because no former president has ever before been indicted. 

To the contrary, until now everyone assumed that presidents, like everyone else, were governed by the nation's criminal laws, had to follow those laws on and off the job, and could be held accountable if they violated them.  Former President Ford confirmed that understanding when he gave Richard Nixon a pardon for any crimes Nixon had committed during his presidency. And the Supreme Court said as much in Nixon v. Fitzgerald when it both carved out an immunity against charging former presidents civilly for official acts they undertook in office but clearly noted the same would not apply in criminal cases. 

To cure this non-existent problem, the Court held, presidents from this point forward will now enjoy some form of absolute or presumed immunity.

For acts within "his exclusive sphere of constitutional authority," the President will be "absolutely immune." For "official" acts outside that sphere, he will enjoy either absolute or presumed immunity. It will be absolute "unless the Government can show that applying a criminal prohibition to that act would pose no 'dangers of intrusion on the authority and functions of the Executive Branch.'"

Though this standard seems clear as stated, Roberts spends two-thirds of his opinion offering guidance on what it means and how it should be applied . . .

Making it anything but.

In fact, we are in a brave new world.

Courts will first have to determine whether an act is within a president's exclusive sphere. Assuming it isn't, they will then have to decide if the act was official or unofficial. If unofficial, there is no immunity.  If official, however, the act is presumptively immune. To overcome the presumption, the Government will then need to satisfy the no danger test.  Critically, the Court stated that "in dividing official from unofficial conduct, courts may not inquire into the President's motives."  Nor, it said. "may courts deem an action unofficial merely because it allegedly violates generally applicable law." (Later in its opinion, the Court also decided that, in this case, evidence in the nature of "official conduct" could not even be used to prove Trump's motive or mens rea.)

In support of this three-part test, Roberts notes that examples of exclusive presidential authority include the pardon power, the power to remove and supervise federal officials acting on his behalf, and the power to recognize foreign countries. Official acts, he explains, are those for which the Constitution or statutes provide authority.  Because, however, the President's "discretionary responsibilities" are broad and some acts (like "speaking to and on behalf of the American people") are official even absent specific authority, Roberts concludes that "immunity extends to the 'outer perimeter' of the President's responsibilities, covering actions so long as they are 'not manifestly or palpably beyond [his] authority'"

The indictment of Trump charges him with attempting a coup by falsely claiming he won the 2020 presidential election and then attempting to enlist the Justice Department, the Vice President,  numerous state officials and others in support of his effort to reverse the results by falsely claiming fraud, finding votes that did not exist, creating fraudulent slates of electors in a number of states, demanding that the Vice President reject legitimate electoral votes on January 6 and inciting the Capitol riot that same day to force that result.

Though the Court remands the case back to the district court to determine which parts of that indictment, if any, can move forward, its capacious definition of official acts and "no danger" test make it highly unlikely that anything will survive.  Indeed, in his ten pages of specific "guidance" on how the Court's new immunity rule might apply to the actual indictment, Roberts basically lays out a road map to immunity. 

On the indictment's charge that Trump tried to use DOJ attorneys to "convince certain States to replace their legitimate electors with Trump's fraudulent slate" -- all of which the DOJ refused to do -- the Court notes that these allegations involved Trump's official use of power. To drive the point home, Roberts spends two pages going on about the executive's authority to investigate, prioritize and  prosecute crime, and the president's "unrestricted power" to remove officials.

On the charge that Trump tried to force the Vice President to reject legitimate electoral votes, Roberts spends three plus pages laying out the Vice President's role as successor and adviser to the President. "Whenever the President and the Vice President discuss their official responsibilities," he offers, "they engage in official conduct." 

On the charge that Trump conspired to create fraudulent slates of electors, the Court said "determining" whether this was official or unofficial conduct "requires a close analysis of the indictment's extensive and interrelated allegations."  On the charge that his rally speech on January 6 and tweets beforehand incited the riot that then occurred, the Court said that this too was "factbound".

As far as I can tell, the Supreme Court has decided that Trump cannot be prosecuted for, nor can any evidence be admitted of, any of the indictment's alleged interactions between him and DOJ attorneys or between him and Pence.  To the extent his communications with state officials fall within a generic right to officially comment on federal elections, or his rally speech and tweets are outgrowths of every presidents "long recognized" use of the "bully pulpit to persuade Americans . . . in ways the President believes would advance the public interest", these acts would also be beyond the reach of the criminal law.

That Trump actually lied about the results of the election and the absence of  any outcome-determinative fraud, actually intended to remain in office despite losing, actually solicited or approved his agents' solicitation of fraudulent electoral slates to do so, actually demanded that his Vice President spearhead an 11th hour unconstitutional coup and actually encouraged his supporters to engage in a putsch . . .

Does not matter to six members of this Supreme Court.

All of whom were appointed by Republican presidents.

Five by Republicans whom the majority of Americans voted against.

Trump v. United States will go down in history as one of the four worst decisions ever made by the Supreme Court.  The other three are Dred Scott v. Sanford, Plessy v. Ferguson and Lochner v. New York. In Scott, the Court held that Congress could not ban slavery in the federal territories.  It led almost directly to the Civil War.  In Plessy, the Court bastardized the 14th Amendment by allowing the de facto re-enslavement of blacks under the legal myth of separate but equal. It basically reversed the results of the Civil War. And in Lochner, the Court turned industrial capitalism into a killing field by allowing the abuse of children under the guise of the Constitution's contracts clause. It crippled Congress' ability to regulate the profit motive run amok.

The only bright spot in this otherwise dark and dangerous moment is this:

Disastrous decisions often beget prescient dissents.  

In Plessy, there was John Marshall Harlan.

In Lochner, Oliver Wendell Holmes, Jr.

And in Trump v. United States,  there is . . .

Sonia Sotomayor.

In her eloquent dissent, Justice Sotomayor eviscerates the Chief Justice's opinion. After laying out the indictment's "stark portrait of a President desperate to stay in power," she begins: "The Court now confronts a question it has never had to answer in the Nation's history: Whether the former President enjoys immunity from federal prosecution.  The majority thinks he should," she continues, "and so it invents an atextual, ahistorical and unjustifiable immunity that puts the President above the law."

"Argument by argument," she notes, "the majority invents immunity through brute force. Under scrutiny the arguments crumble . . . [T]he majority's broad 'official acts' immunity is inconsistent with text, history and established understandings of the President's role. [I]t is deeply wrong even on its own functional terms. Next, the majority's 'core' immunity is both unnecessary and misguided. Finally, the majority's project will have disastrous consequences for the presidency and our democracy."

Sotomayor justifiably upbraids the Roberts six for their transparent hypocrisy.  

Though the majority calls for "a careful assessment of the scope of Presidential power under the Constitution," she writes, that "careful assessment does not involve the Constitution's text," which "contains no immunity from criminal prosecution."  Laying out the wealth of historical evidence refuting any notion of criminal immunity, she concludes, citing the Dobbs  decision eliminating the right to abortion and the Bruen decision establishing the right to carry a concealed weapon, "It seems history matters to this Court only when it is convenient."

Text, history and hypocrisy aside, however, the "disastrous consequences for the presidency and our democracy" form the backbone of Sotomayor's dissent.  

At base, she notes, the Court has granted absolute immunity to any official presidential act. The Court claims otherwise but the "no danger" test for overcoming presumptive immunity eliminates that possibility.  "It is hard to imagine a criminal prosecution for the President's official acts that would pose no danger of intrusion on Presidential authority in the majority's eyes," she explains, and because "any incursion on Executive power is too much" under the majority opinion, whether immunity is absolute or presumptive "hardly matters."  In fact, the imposed test "narrows the conduct considered 'unofficial' almost to a nullity." And when the majority's additional rule precluding inquiry into motive is added to the mix, "any use of official power for any purpose, even the most corrupt purpose indicated by objective evidence of the most corrupt motive and intent, remains official and immune."

In laying out the risks the majority pretends to protect against, the Sotomayor dissent unearths the fictional world in which the majority actually resides.  In that world, the president cannot dare to be bold or "'deal fearlessly or impartially' with the duties of his office" if he is held accountable for his crimes. "If that is right," says an exasperated Sotomayor, "it is a distortion that has been shaping Presidential decision-making since the earliest days of the republic." Because, from the beginning in 1787, "every sitting president has so far believed himself under threat of criminal liability after his term in office."

It is, of course, not right. 

Presidents have not found it difficult comply with the criminal law and do their job at the same time.  No one -- save Trump -- has even been charged after he left office; the only one who came close resigned and was pardoned. Any who are (including Trump) have available the full panoply of "robust procedural protections" that make base or frivolous allegations dead on arrival. And as for serious allegations, it is hardly chilling to require that the person sworn "to take care that the laws be faithfully executed" at the very least avoid violating the ones that are crimes.

The Supreme Court has laid waste to that bedrock requirement inherent in the rule of law.  

As Sotomayor starkly warns: "The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding."

"This new official acts immunity now 'lies about like a loaded weapon' for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the nation."

"The President of the United States is the most powerful person in the country, and possibly the world. When he uses his power in any way, under the majority's reasoning, he will now be insulated from criminal prosecution."

"Orders the Navy 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."

"In every use of official power, the President is now a king above the law."

Tomorrow is the Fourth of July.

I would table the fireworks.

A laughing George III is nothing to celebrate.