Since these distinctions require detailed, fact-specific analysis, the justices remanded the case to U.S. District Court for the District of Columbia to determine which parts of the election interference indictment can survive based on the Court's guidance. That decision probably means any trial in this case won't begin until after this year's presidential election. And depending on the outcome of that contest, the case may be dropped before it is resolved.
"This case is the first criminal prosecution in our Nation's history of a former President for actions taken during his Presidency," Chief Justice John Roberts writes in the majority opinion, which was joined in full by four of his colleagues. "We are called upon to consider whether and under what circumstances such a prosecution may proceed. Doing so requires careful assessment of the scope of Presidential power under the Constitution. We undertake that responsibility conscious that we must not confuse 'the issue of a power's validity with the cause it is invoked to promote,' but must instead focus on the 'enduring consequences upon the balanced power structure of our Republic.'"
Both sides agreed that a former president can be prosecuted for "unofficial acts committed while in office," although they disagreed about which conduct described in the indictment fell into that category. Today's decision points toward resolution of that dispute but leaves many issues unresolved.
When Trump urged the Justice Department to investigate his baseless allegations of election fraud, Roberts says, he was exercising his "conclusive and preclusive" authority. The executive branch has "'exclusive authority and absolute discretion' to decide which crimes to investigate and prosecute," he writes, "including with respect to allegations of election crime."
The indictment also alleges that Trump "attempted to enlist" Vice President Mike Pence to "use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results." Trump wanted Pence to reject electoral votes for Joe Biden from several battleground states and send them back to state legislatures to consider whether he actually won them. When the president and the vice president "discuss their official responsibilities," Roberts says, "they engage in official conduct." The government therefore has to overcome a presumption of immunity, which means the district court must consider whether prosecuting Trump based on these conversations would impermissibly intrude on executive authority.
Other allegations involve Trump's interactions with state officials and private parties. Trump tried to persuade state officials that the election results had been tainted by systematic fraud, and his campaign enlisted "alternate" electors whom he wanted state legislators to recognize instead of the Biden slates.
Those actions, Trump maintained, were "official" because he was trying to ensure the integrity of a federal election. To the contrary, Special Counsel Jack Smith argued, Trump was trying to undermine the integrity of the election, and he did so in service of his interests as a political candidate, not as part of his presidential duties. According to the Supreme Court, the district court therefore must determine, as an initial matter, "whether Trump's conduct in this area qualifies as official or unofficial."
Finally, the indictment cites Trump's behavior on January 6, 2021, the day his supporters, inspired by his phony grievance, invaded the U.S. Capitol, interrupting the congressional tally of electoral votes. Trump's conduct that day consisted mainly of his speech at the pre-riot "Stop the Steal" rally and various tweets. Roberts notes that the president has "extraordinary power to speak to his fellow citizens and on their behalf." Generally speaking, his public communications therefore "are likely to fall comfortably within the outer perimeter of his official responsibilities." Whether Trump's communications counted as official acts, Roberts says, depends on the "content and context of each," requiring "factbound analysis" by the district court.
"Trump asserts a far broader immunity than the limited one we have recognized," Roberts writes. That claim was based on a counterintuitive reading of the Impeachment Judgments Clause, which says that when Congress impeaches and convicts a federal official, "the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law." Trump's lawyers said that means a former president can be prosecuted for abusing his powers only after he is impeached and removed for the same underlying conduct.
"The text of the Clause provides little support for such an absolute immunity," Roberts writes. "It states that an impeachment judgment 'shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.' It then specifies that 'the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.' The Clause both limits the consequences of an impeachment judgment and clarifies that notwithstanding such judgment, subsequent prosecution may proceed. By its own terms, the Clause does not address whether and on what conduct a President may be prosecuted if he was never impeached and convicted."
Roberts adds that "historical evidence likewise lends little support to Trump's position." That evidence suggests the clause was aimed at resolving the question of whether prosecuting an impeached and removed president would qualify as double jeopardy.
"The implication of Trump's theory is that a President who evades impeachment for one reason or another during his term in office can never be held accountable for his criminal acts in the ordinary course of law," Roberts writes. "So if a President manages to conceal certain crimes throughout his Presidency, or if Congress is unable to muster the political will to impeach the President for his crimes, then they must forever remain impervious to prosecution." But "impeachment is a political process," and "transforming that political process into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of our Government."
The Court's decision nevertheless raises questions about whether a former president can be held criminally liable for outrageous abuses that arguably qualify as official acts. "The President of the United States is the most powerful person in the country, and possibly the world," Justice Sonia Sotomayor writes in a dissent joined by Justices Elena Kagan and Ketanji Brown Jackson. "When he uses his official powers in any way, under the majority's reasoning, he now will be insulated from criminal prosecution. Orders the Navy's 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 addition to joining Sotomayor's opinion, Jackson filed a dissent that faults the majority for requiring a hazy immunity analysis while leaving crucial questions unanswered. "To the extent that the majority's new accountability paradigm allows Presidents to evade punishment for their criminal acts while in office, the seeds of absolute power for Presidents have been planted," she writes. "And, without a doubt, absolute power corrupts absolutely….The Court has now declared for the first time in history that the most powerful official in the United States can (under circumstances yet to be fully determined) become a law unto himself."
by Jacob Sullum, Reason | Read more:
Image: Leah Millis/Pool/Getty Images via
[ed. See also: How Much Does the President Matter? (Reason):]
"As President Joe Biden weighs whether to remain in the 2024 race, one of the defenses raised by the president's supporters is noteworthy—not just because of what it says about Biden's acuity but also because of what it says about the state of the modern presidency.
During an appearance on MSNBC earlier this week, former Obama administration official Jeh Johnson argued that, effectively, the election is about picking an administration, not a president.
"A presidency is more than just one man," Johnson told Joe Scarborough. "I would take Joe Biden at his worst day at age 86 so long as he has people around him like Avril Haines, Samantha Power, Gina Raimondo supporting him, over Donald Trump any day."
This is true, of course. Over 4 million people work in the federal government's executive branch, and only one of them is Joe Biden. Most are full-time, nonpolitical appointees, but each president gets to make about 4,000 appointments (including the roughly 1,200 positions requiring Senate confirmation). The presidency is obviously about more than one man.
Even so, it's interesting—and perhaps telling—that we've now had two consecutive presidential administrations deploy versions of this same argument in response to questions about the fitness of the man allegedly running the federal government.
During the Trump administration, Trump-skeptical Republicans frequently used a similar argument to justify supporting the then-president despite his obvious temperamental problems and general lack of interest in the minutia of policy making. It was about the judges he'd appoint. It was about the regulations that his executive branch appointees would undo. It was about the military leaders who would prevent him from doing something reckless.
Maybe the presidency is just the friends we made along the way?"
"As President Joe Biden weighs whether to remain in the 2024 race, one of the defenses raised by the president's supporters is noteworthy—not just because of what it says about Biden's acuity but also because of what it says about the state of the modern presidency.
During an appearance on MSNBC earlier this week, former Obama administration official Jeh Johnson argued that, effectively, the election is about picking an administration, not a president.
"A presidency is more than just one man," Johnson told Joe Scarborough. "I would take Joe Biden at his worst day at age 86 so long as he has people around him like Avril Haines, Samantha Power, Gina Raimondo supporting him, over Donald Trump any day."
This is true, of course. Over 4 million people work in the federal government's executive branch, and only one of them is Joe Biden. Most are full-time, nonpolitical appointees, but each president gets to make about 4,000 appointments (including the roughly 1,200 positions requiring Senate confirmation). The presidency is obviously about more than one man.
Even so, it's interesting—and perhaps telling—that we've now had two consecutive presidential administrations deploy versions of this same argument in response to questions about the fitness of the man allegedly running the federal government.
During the Trump administration, Trump-skeptical Republicans frequently used a similar argument to justify supporting the then-president despite his obvious temperamental problems and general lack of interest in the minutia of policy making. It was about the judges he'd appoint. It was about the regulations that his executive branch appointees would undo. It was about the military leaders who would prevent him from doing something reckless.
Maybe the presidency is just the friends we made along the way?"
