Remind me, why did we fight our Revolution? by Marjorie Arons Barron

The entry below is being cross posted from Marjorie Arons Barron’s own blog.

Remember when we scoffed at  Richard Nixon telling David Frost that the President couldn’t be prosecuted for Watergate because “when the President does it, that means it’s not illegal.”  We thought that our Constitution established “a government of laws, and not of men”  and that no person, even the President of United States, was above the law. If Nixon had thought the Supreme Court would rule the way it did Monday, he wouldn’t have resigned!

As Founding Father John Adams told a gathering in Braintree in 1772, “the only maxim of a free government ought to be to trust no man living with power to endanger the public liberty.” He and others heroically fought a war of independence to give us freedom from monarchical rule. Afterward, the Constitution they created, with  its exquisite arrangement of checks and balances, was designed to provide protections from the unbridled exercise of power. For nearly two and a half centuries, that founding principle of equality before the  law held.

Monday the US Supreme Court said effectively, “No mas.” – the President is all but immune from prosecution. It embraced wholeheartedly an extreme version of the unitary executive theory. There are no longer three co-equal branches of government.

Writing for a 6-3 ideologically-divided majority, Chief Justice John Roberts said the President has  “absolute immunity” from criminal prosecution for any crimes committed as part of the official acts at the core of Presidential powers. Additionally, the court said the president has “presumptive immunity” for other official acts that might fall within “the outer perimeter” of a president’s official duties.  This means  the government must satisfy the Court that prosecution won’t intrude on the authority and functions of the Presidency.

To make matters worse, in distinguishing official from unofficial conduct, courts “may not inquire into the President’s motives.” In other words, the fact that  a President does something because he’s been bribed or wants to overturn a lawful election to retain power cannot be considered.

Judge Tanya Chutkan has been instructed that a President’s conversations with Justice Department officials are within the safe zone of official duties. Roberts wrote: the President has “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials.” So much for the post-Watergate tradition of AG independence! The Supreme Court doesn’t care that Trump’s communications involved voter fraud investigations or Trump’s scheme to steal the election. Communications with Mike Pence may fall here as well.

Moreover, the Supreme Court blocks the trial court from looking at whether presidential conduct violates the law to decide whether it’s official or unofficial. Stretching presidential powers up to the outer perimeter of official duties means immunity, for example, even if it involves killing someone or accepting bribes.

Remember when Mitch McConnell, voting against Trump’s second impeachment, said:   “Trump is still liable for everything he did while he was in office…. We have a criminal justice system in this country. We have civil litigation, and former Presidents are not immune from being held accountable by either one.” Sounds quaint now.

It’s  jaw-dropping that,  after stalling for months making a timely decision on the assorted appeals, the Court couldn’t find a single course of conduct for which it was willing to say the government  could prosecute Trump and is now sending the case  back for further preliminary considerations. (Only Justice Amy Coney Barrett, in a concurring opinion footnote, conceded that organizing fake slates of electors is a prosecutable offense.) No way the public will have a verdict before November.

Trump has already promised, if reelected, to be a dictator on Day One. He has ominously threatened to invoke the Insurrection Act, target  his political enemies inside and outside government, prosecute Joe Biden for corruption and  have members of the January 6 committee, especially Liz Cheney, tried for treason. If Trump wins, current federal prosecutions against him will disappear, and he can pardon himself for everything he does going forward.

Under this decision, as Norm Ornstein posted on X,  “ A President Trump can order his handpicked FBI director to arrest and jail his political opponents. He can order the IRS to put liens on the property of media companies who criticize him and jail reporters and editors. Remember “the enemy of the people” is Trump’s term. … This is Orban territory. Or worse, Putin.” And now, our miserable excuse for a Supreme Court has given the former President a permission slip.

Under the Court’s reasoning, Trump could, with impunity, put our country under martial law, give U.S. intelligence to Russia to help defeat Ukraine, or negotiate diplomatic deals with Saudi Arabia designed primarily to further Trump’s personal financial interests in the Kingdom.

The dystopian hypotheticals write themselves. How now can any military leader refuse what would otherwise be an obviously illegal order from a President issuing it as an official act?

Justice Sonia Sotomayor added other hair-raising examples: “Orders 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.”

Indeed, the whole matter of presidential impeachment as a Constitutional safeguard is now in doubt. Could any alleged “high crime or misdemeanor” under this decision lead to a conviction?

As the dissenting Justices wrote, the dangers go far beyond Trump’s wrong-doing. The unconstitutional expansion of presidential powers is there for any future President who wants to put his or her own interests above those of the country.

Ultimately, the highly partisan court made itself the final arbiter of what is “official” and what is not.  So, while it might likely give a pass to President Trump’s committing any of the above horrific hypotheticals or acting on his stated autocratic intentions, it would likely sanction President Biden were he to authorize the elimination of candidate Trump on the grounds that Trump’s return to the White House is a clear and present danger to the nation.

Final question: To what extent could this decision protect a future President from the consequences of taking such “bold and unhesitating action” as ordering the assassination of a Supreme Court Justice deemed by said President to be a national security threat? These possibilities were once unthinkable. No longer.

Happy Fourth of July.

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