Daily Herald opinion: Supreme Court's self-described strict constructionist majority dangerously redefines the presidency
“When the president does it, that means it is not illegal, by definition.” — Richard Nixon to David Frost, 1977
Was former president Nixon saying in effect that U.S. presidents are above the law? That is how most of the public interpreted Nixon’s remarks at the time with disgust and dismay.
Now, the U.S. Supreme Court has created a vision that reshapes the words of the only U.S. president to resign in disgrace to suggest he had it right all along. That some actions of a president that could be illegal if committed by anyone else could be presumed acceptable under the scope of presidential authority?
Whatever Nixon intended, on Monday the U.S. Supreme Court answered the immunity query posed by Donald Trump regarding his role in the Jan. 6 insurrection in the most disturbing way possible: They declared that U.S. presidents are immune from prosecution — no matter what they do — if their actions can be classed as “core functions” of the office, or “official” business of the presidency.
Consider the full force of that reasoning. It defies every precept we have had about our nation’s top leader from the day George Washington first took the oath of office in 1789.
“The President is not above the law,” Chief Justice John Roberts writes in a majority opinion of the court that precisely set the president above the law.
In a tortured effort to uphold that basic tenet of American politics, Roberts and the majority created a vague and malleable distinction that somehow differentiates undefined “official acts” from “unofficial acts.”
“The President enjoys no immunity for his unofficial acts, and not everything the President does is official,” Roberts asserted. Then, he and the majority ducked the specific question at stake in the Trump immunity case and remanded the whole thing back to the Court of Appeals “for further proceedings.”
Now, not only has a court majority made up of men and women who claim to be strict constructionists established a precedent found nowhere in the Constitution itself and discordant with American tradition, but it has also passed along to a lower court the responsibility to distinguish between “official” and “non-official” acts — adding the insult of a court delay politically beneficial to Trump to the injury of rewriting the Constitution itself in ways that will help him if elected, and set a dangerous precedent essentially providing absolution for him if he is elected and for any future president of whatever party for acts they may take in the future.
The impact of that precedent cannot be overstated.
Roberts’ opinion states plainly that a president’s correspondence with the Justice Department is exempt from prosecution. Talk about the potential for weaponizing the justice system. And this for any president. In Trump’s case, it involves a potential chief executive who has promised to order prosecutions of everyone from the officials who legally brought claims against him to individuals from his own party who investigated his actions surrounding the Jan. 6, 2021, Capitol riot. Who knows what nefarious circumstances some future president may create under the umbrella of this protection?
In her vigorous dissent, Justice Sonia Sotomayor systematically breaks down the majority’s contorted logic on behalf of presidential immunity and bluntly identifies the portent of that logic.
Starting with a pointed reference to the Roberts court’s own wording in the Dobbs case that eliminated a constitutional right to abortion, she declares, “This official-acts immunity has ‘no firm grounding in constitutional text, history, or precedent.’ ”
And later states, “Whether described as presumptive or absolute, under the majority’s rule, a President’s use of any official power for any purpose, even the most corrupt, is immune from prosecution. That is just as bad as it sounds, and it is baseless.”
Moreover, in the case before it, the Roberts majority leaves it to the district court to determine what parts of Trump’s correspondence with Vice President Mike Pence or other officials could be considered unofficial business. Simply as a procedural matter, that leaves open wide doors that, should the case avoid the scenario of a new President Trump pre-emptively pardoning himself from any potential legal outcome, could find the matter right back before the Supreme Court. So, this decision — which the ruling itself declares “poses a question of lasting significance” — doesn’t even answer that question and all but ensures it will require deeper clarification over time.
The Founding Fathers baked lifetime tenures for federal judges into the Constitution with the expectation that this would free them from the pressures and temptations of political partisanship in their deliberations and decision making. That hope has been tested many times over the course of the nation’s history, but rarely has it been defied as consistently and openly as with the Roberts court.
Perhaps never has that defiance had such dangerous “lasting significance” as its clearly partisan ruling in the Trump immunity case.