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“I am in shock that a lawyer stood in the U.S. Supreme Court and said that a president could assassinate his political opponent and it would be immune as ‘an official act,’” lawyer Marc Elias, whose firm defends democratic election laws, wrote today on social media. He added: “I am in despair that several Justices seemed to think this answer made perfect sense.”
Elias was referring to the argument of Trump’s lawyer before the Supreme Court today that it could indeed be an “official act” for which a president should be immune from criminal prosecution if “the president decides that his rival is a corrupt person and he orders the military or orders someone to assassinate him.”
The Supreme Court today heard close to three hours of oral argument over Trump v. United States, which concerns former president Trump’s claim of absolute immunity from criminal charges for “official acts”: in this case, his attempt to overturn the lawful results of the 2020 presidential election and to stay in office against the will of the voters.
That is, like the authoritarian leaders he admires, Trump tried to steal the 2020 presidential election and seize the presidency. Sometimes I worry that the enormity of that crime against our democracy is becoming normalized.
It was not normalized by grand jury members who reviewed the evidence of that effort; they indicted Trump in August 2023 on four counts. But Trump responded by claiming that a president cannot be prosecuted for official acts and that a former president cannot be prosecuted unless the House of Representatives has impeached him and the Senate convicted him.
Justice Clarence Thomas, whose wife, Ginni, participated in that effort, did not recuse himself from today’s hearing, and the court did not object to his presence.
Ruth Marcus of the Washington Post noted that the justices on the court seemed to be weighing “which poses the greater risk—putting a criminal president above the law or hamstringing noncriminal presidents with the risk of frivolous or vindictive prosecutions brought by their successors.”
The liberals on the court focused on the former—after all, the case is about whether Trump should answer to criminal indictments for trying to overturn our democracy. Justice Ketanji Brown Jackson noted: “If someone with those kinds of powers, the most powerful person in the world with the greatest amount of authority, could go into office knowing that there would be no potential penalty for committing crimes, I’m trying to understand what the disincentive is from turning the Oval Office into, you know, the seat of criminal activity in this country.”
In contrast, the right-wing justices focused on the risk of vindictive prosecutions, which has been the heart of Trump’s argument for complete immunity. Trump insists that without immunity, a president will be afraid to make controversial decisions out of fear of later prosecution. Such a lack of immunity would destroy the presidency, he has argued, claiming that he is simply trying to protect the office.
And yet he is the first of 45 presidents to be charged with a crime, and no previous president made any claim of immunity.
Nonetheless, the right-wing justices made it clear they were more interested in the future than in the present. In their comments they stayed far away from Trump and focused instead on presidents in the past and the future. (Conservative judge Michael Luttig noted: “The Court and the parties discussed everything but the specific question presented.”)
Justice Neil Gorsuch said: “I’m not concerned about this case, but I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives.” Justice Samuel Alito tried to turn the argument for accountability upside down by suggesting that complete immunity would be more likely to encourage presidents to leave office, because if a president knew they could be prosecuted for crimes, they would be less likely to leave peacefully.
Indeed, Marcus wrote: “The conservative justices’ professed concerns over the implications of their rulings for imaginary future presidents, in imaginary future proceedings, seemed more important to them than bringing Trump to justice.” Constitutional law professor Anthony Michael Kreis was more concrete in his reaction; he found it “[u]nbelievable that Supreme Court justices who see forgiving student loans, mandating vaccines, and regulating climate change as a slippery slope toward tyranny were not clear-eyed on questions of whether a president could execute citizens or stage a coup without being prosecuted.”
The court’s decision will likely take weeks and thus will delay Trump’s trial for crimes committed in his attempt to overturn the results of the 2020 election, likely until after the 2024 election. On Monday, April 22, former representative Liz Cheney (R-WY), who served as vice chair of the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol, called out Trump’s attacks on the legal system and delays to avoid accountability. In a New York Times op-ed, Cheney reminded the justices that delay would mean that the American people would not get to hear the testimony and evidence Special Counsel Jack Smith has uncovered before the 2024 election.
“It cannot be that a president of the United States can attempt to steal an election and seize power but our justice system is incapable of bringing him to trial before the next election four years later,” she wrote.
And yet, here we are.
Voters’ right to know what a candidate for president did to overthrow the will of the people in a previous election is at stake in today’s arguments. But so is the rule of law on which our democracy stands. The rule of law means that laws are made according to established procedures rather than a leader’s dictates, and that they are reasonable. Laws are enforced equally. No one is above the law, and everyone has an obligation to obey the law.
As Justice Elena Kagan noted today: “The framers did not put an immunity clause into the Constitution. They knew how to; there were immunity clauses in some state constitutions. They didn’t provide immunity to the president. And, you know—not so surprising—they were reacting against a monarch who claimed to be above the law. Wasn’t the whole point that the president was not a monarch and the president was not supposed to be above the law?”
Indeed.
“[W]here, say some, is the King of America?” Thomas Paine wrote in Common Sense, the 1776 pamphlet that convinced British colonists in North America to cut ties with their king and start a new nation. “[I]n America the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.”
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Notes:
https://www.reuters.com/legal/us-supreme-court-weighs-trumps-bid-immunity-prosecution-2024-04-25/
https://www.washingtonpost.com/opinions/2024/04/25/trump-immunity-supreme-court-jan-6/
https://www.oyez.org/cases/2023/23-939
https://www.motherjones.com/politics/2024/04/samuel-alito-supreme-court-trump-immunity/
https://www.nytimes.com/2024/04/22/opinion/trump-immunity-supreme-court.html
https://www.vox.com/scotus/24140309/supreme-court-donald-trump-immunity-jack-smith
https://www.annenbergclassroom.org/glossary_term/rule-of-law/
https://calhum.org/files/uploads/program_related/TD-Thomas-Paine-Common-Sense.pdf
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