The ‘lawfare’ against Donald Trump is collapsing
The U.S. Supreme Court’s decision on presidential immunity didn’t sit well at all with the current occupant of the office.
“The American people deserve to have an answer in the courts before the upcoming election,” President Joe Biden said in a televised speech. “The public has a right to know the answer about what happened on January 6th, before they are asked to vote again this year. Now because of today’s decision, that is highly, highly unlikely.”
President Biden openly said what his Justice Department and Special Counsel Jack Smith have not been willing to say directly: they need former President Donald Trump convicted in time to affect the outcome of the November election.
The timeline looks so sketchy. Trump announced on November 15, 2022, that he would run for re-election. He was indicted in Manhattan the following April, then in Florida in June, then in Washington, D.C., on August 1 and in Georgia on August 15. All the conduct occurred years earlier, but Trump was criminally charged only after he became a candidate.
The first Republican primary debate was held on August 23, just one week after the indictment in Georgia. There were eight “not Trump” hopefuls on the stage that night. By March 6, they were all out of the race.
That probably increased the pressure to get Trump convicted before the election. However, the Constitution guarantees due process of law, the opposite of arbitrary power.
In the Washington, D.C., case, Trump moved to dismiss the indictment based on presidential immunity from prosecution for his actions in office: making public statements, communicating with various officials about investigating election fraud and organizing contingent slates of electors, all within the “outer perimeter of his official responsibilities.”
Both U.S. District Court Judge Tanya Chutkan and the D.C. Circuit Court of Appeals ruled that there is no presidential immunity, but in their rush to expedite the case, neither bothered to analyze whether the actions described in the indictment involved official acts.
That’s when the Supreme Court agreed to decide this question: “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
Chief Justice John Roberts wrote the majority opinion in the case known as Trump v. United States.
“The first step is to distinguish his official from unofficial actions,” Roberts wrote. “In this case, however, no court has thus far considered how to draw that distinction, in general or with respect to the conduct alleged in particular. Despite the unprecedented nature of this case, and the very significant constitutional questions that it raises, the lower courts rendered their decisions on a highly expedited basis.”
Roberts explained the constitutional structure of separation of powers. Because the president is “the only person who alone composes a branch of government,” he is entitled to absolute immunity from criminal prosecution for actions within his “exclusive and preclusive constitutional authority.”
One example of this type of power is the pardon, which can’t be limited or reviewed by Congress or the courts. Roberts related that during and after the Civil War, “President Lincoln offered a full pardon, with restoration of property rights, to anyone who had ‘engaged in the rebellion’ but agreed to take an oath of allegiance to the Union.”
It’s true, people fighting the actual Civil War were forgiven a lot faster than the January 6th protesters, still getting indicted almost four years later.
The court held that a president is also entitled to a presumption of immunity “for his remaining official acts,” but has no immunity for “unofficial acts.”
Which is which? That determination now goes back to the district court, but Roberts offered “guidance.” The courts “may not inquire into the President’s motives” or “deem an action unofficial merely because it allegedly violates a generally applicable law.” Subjecting the president to “judicial examination” or trial on a “mere allegation” would risk intruding on the constitutional separation of powers that immunity is intended to protect.
Additionally, prosecutors may not “admit testimony or private records of the President or his advisers probing the official act itself.” Roberts wrote that “allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety,” seriously impairing “the President’s exercise of his official duties.”
Turning to the conduct described in the indictment, the court said Trump’s “threatened removal of the Acting Attorney General” is within his exclusive power to remove “executive officers of the United States whom he has appointed.” Trump is “absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.”
Trump is “at least presumptively immune from prosecution for his discussions with Vice President Mike Pence.” The district court will have to determine the facts “with input from the parties.”
All the allegations in the indictment will now be subject to “fact specific” analysis to sort official acts from unofficial. And when considering Trump’s words, “content, form and context” will “necessarily inform the inquiry.” No deceptive editing.
The Supreme Court’s decision is a wrecking ball into the indictments. Already Trump’s lawyers have challenged the conviction in the New York “hush money” case. Sentencing has been postponed until September, if it even happens.
And there’s more. Justice Clarence Thomas wrote a concurring opinion explaining in detail why Attorney General Merrick Garland’s appointment of Jack Smith as special counsel is likely illegal. That question has already come up in the Florida case.
The “lawfare” against Trump is collapsing. Instead of 91 criminal convictions before the election, there may be 91 dismissed charges.
“Now the American people will have to do what the courts should have been willing to do but would not,” Biden implored the public in his televised speech. “The American people must decide whether Donald Trump’s assault on our democracy on January 6th makes him unfit for public office in the highest office in the land.”
The American people will decide. We’ll see who they think is unfit for the office.
Write Susan@SusanShelley.com and follow her on Twitter @Susan_Shelley