(Link for photo here)
Welcome to “You need to calm down, Supreme Court edition”! Since calming down about our national politics has been a theme of mine for a couple weeks, I thought I’d make the case for calming down about the Supreme Court. It will give you something to take your mind off the craziness of the presidential race.
In the final weeks of the Court’s last term, they released two decisions that prompted an onslaught of fevered thinkpieces. These were Trump v. United States, the case regarding the issue of Trump’s immunity, and Loper Bright Enterprises v. Raimondo, the case regarding the issue of Chevron deference. In this post, we’ll examine Trump v. United States.
In reading about this case, you often get quotes like this one from the Biden campaign team: “the court just gave the ex-prez a potential ‘key to a dictatorship.’’’ Or you get quotes like this one, which asserts that the decision is “a relentless march of vapid abstractions, all revolving around obsessive longing for an unfettered strongman to make things right.”
But is that truly an accurate description? Let’s do a deep dive.
The Court essentially considered 4 separate questions:
Question 1: Can a president be prosecuted for the content of conversations they have with members of their cabinet while performing their official duties?
On this question, the court ruled that the President is absolutely immune by virtue of the office. Of the four questions, this was the only one that the Supreme Court ruled involved absolute immunity. And that decision is wise.
To understand why, it’s important to remember that the court was not considering a question about Donald Trump, it was considering a question about the Presidency. The issue the Court was considering was whether the intent of the Constitution was that the President should be accountable in the moment for every individual decision they make, or whether their moment-by-moment presidential decisions would be off limits, on the grounds that the President needs to be able to do the job, and the electoral machinery built into the Constitution and the option of impeachment provide enough accountability.
In effect, the Court decided that these are the mechanisms intended by the Founders to provide accountability of the President to the citizens, and therefore, the President is immune to lawsuits challenging their decisions and conversations while performing their official duties. That interpretation is both reasonable and practical. It’s reasonable in that it does not contradict anything in the Constitution, and it’s practical in that it allows the President to focus on doing the job without worrying that one of the many, many politically ambitious lawyers out there in our nation of 330 million people is going to sue them for every individual decision they make while in office.
As a concrete example of that, Joe Biden does not have to worry that some lawyer out there is going to sue him personally over his handling of the border. He doesn’t worry about it because he’s immune under the same logic that Trump is, and in the view of both the Court and the Constitution, the regular election cycle and/or impeachment provides citizens with methods to hold him accountable for any decisions he makes regarding the border.
Now, you are of course perfectly free to disagree with the Court’s logic and interpretation of this constitutional question. All I’m saying is that the headlines screaming that the President is now wholly unaccountable and that this decision is some nightmare assault on democracy itself are… melodramatic.
Question 2: Can the President be prosecuted for conversations they have with the Vice President?
This is a separate question because the Vice President, unlike members of the cabinet, does not “serve at the pleasure of the President” in the same way that cabinet members do; the vice presidency is another elected office. Also, when the Vice President is presiding over the Senate, they are playing a legislative role, not an executive role, so there’s some ambiguity about whether a discussion about any such activity would count as part of the executive duty of the President. Nevertheless, the Court essentially held that conversing with the Vice President during the course of official duties is similar enough to conversing with a member of the cabinet that the President is probably immune (“presumptive immunity” was the phrase used by the Court) for any conversations they have with the Vice President. Note that the Court did not commit itself to a final decision on that question with regard to Trump, though.
Question 3: Can the President be prosecuted for the content of public communications (for instance, tweets)? Or, put another way, can the President be prosecuted for conversations they have with the public?
This is a separate question because the public is not part of government at all. But again, the Court said that the President is probably immune to prosecution for the contents of public communications put out while performing official duties. Underlying this is the same logic as before: the regular electoral machinery offers people the chance to hold the President accountable for those communications; i.e., if you don’t like the President’s tweets, you can vote him or her out. Again, note that the Court did not commit itself to a final decision on that question with regard to Trump.
Question 4: Can the President be prosecuted for conversations with state officials? This question was triggered by Trump’s phone calls to state election officials asking them to do things like “find votes.”
On this question, the Court ruled that the President might be immune, given that the official duties of the President may at times require communication with state officials. But this is by far the most open question in the view of the different justices, and as Scotusblog points out, we have a great quote from Justice Amy Coney Barrett confronting that question head on:
“The indictment alleges that the President “asked the Arizona House Speaker to call the legislature into session to hold a hearing” about election fraud claims. The President has no authority over state legislatures or their leadership, so it is hard to see how prosecuting him for crimes committed when dealing with the Arizona House Speaker would unconstitutionally intrude on executive power.” [emphasis mine]
That is Justice Barrett signaling that she is open to letting that case go through, and if that’s where she is on the issue, there’s a chance that’s also where Chief Justice Roberts or Justice Kavanaugh would land (probably not the other 3, though), and Justice Barrett plus either of them, along with the 3 justices in the liberal bloc, would be a majority decision allowing that case to proceed, when the time comes.
For now though, it’s effectively just “probably immune” and “might be immune”, and the Court sent the cases back down to lower court. There, a lot of discussion and debate will occur about what of President Trump’s actions can be reasonably construed as “official duties”. Note that Justice Roberts explicitly said in his opinion that there is “no immunity for unofficial acts.” Eventually, once lower courts have had their say on which, if any, of Trump’s actions were “official”, these cases will end up back at the Supreme Court, and the Court will presumably come to their final decisions on questions 2-4 above with regard to Trump specifically.
But zooming back out, the point again is that you can feel free to disagree with the Court’s logic and interpretation, but where the Court came down on these questions is not unreasonable, and certainly not the death of democracy. It’s fashionable these days for folks to pitch a five-alarm fit every time the Court issues a decision they don’t like, but it’s possible to disagree with the Court without a public wailing and gnashing of teeth about the death of democracy. So, it would be great if everyone would calm down a little bit about the Court.
Next up later this week: You need to calm down, Chevron deference edition…