Yesterday's self-inflicted wound by the Supreme Court — and should the Republic survive another quarter century, the decision in Trump v. United States, No. [20]23–939 (U.S. 01 Jul 2024) (PDF, large file), will be viewable only as a self-inflicted wound similar to Dred Scott, Plessy, and Korematsu — reflected the worst kind of tunnel vision. I won't waste my time and effort on a detailed analysis, especially since this blawg is far from the appropriate forum. Two points that will probably be neglected do deserve at least some mention (if only so I can say "I told you so!" later).
1. The majority opinion cites with great approval, on several occasions, short passages from Justice Robert Jackson. Most of them, however, missed the point; missed Justice Jackson's other role, one specifically dealing with high-official misconduct (the Chief Executive in question was, umm, not available to be tried — but would have been so tried if possible).
At the very outset, let us dispose of the contention that to put these men to trial is to do them an injustice entitling them to some special consideration. These defendants may be hard pressed but they are not ill used. Let us see what alternative they would have to being tried.
More than a majority of these prisoners surrendered to or were tracked down by the forces of the United States. Could they expect us to make American custody a shelter for our enemies against the just wrath of our Allies? Did we spend American lives to capture them only to save them from punishment? Under the principles of the Moscow Declaration, those suspected war criminals who are not to be tried internationally must be turned over to individual governments for trial at the scene of their outrages. Many less responsible and less culpable American-held prisoners have been and will continue to be turned over to other United Nations for local trial. If these defendants should succeed, for any reason, in escaping the condemnation of this Tribunal, or if they obstruct or abort this trial, those who are American-held prisoners will be delivered up to our continental Allies. For these defendants, however, we have set up an International Tribunal and have undertaken the burden of participating in a complicated effort to give them fair and dispassionate hearings. That is the best-known protection to any man with a defense worthy of being heard.
If these men are the first war leaders of a defeated nation to be prosecuted in the name of the law, they are also the first to be given a chance to plead for their lives in the name of the law. Realistically, the Charter of this Tribunal, which gives them a hearing, is also the source of their only hope. It may be that these men of troubled conscience, whose only wish is that the world forget them, do not regard a trial as a favor. But they do have a fair opportunity to defend themselves-a favor which these men, when in power, rarely extended to their fellow countrymen. Despite the fact that public opinion already condemns their acts, we agree that here they must be given a presumption of innocence, and we accept the burden of proving criminal acts and the responsibility of these defendants for their commission.
When I say that we do not ask for convictions unless we prove [the] crime, I do not mean mere technical or incidental transgression of international conventions. We charge guilt on planned and intended conduct that involves moral as well as legal wrong. And we do not mean conduct that is a natural and human, even if illegal, cutting of corners, such as many of us might well have committed had we been in the defendants’ positions. It is not because they yielded to the normal frailties of human beings that we accuse them. It is their abnormal and inhuman conduct which brings them to this bar.
Opening Statement to the International Military Tribunal ("Nuremberg Trial") (21 Nov 1945).
2. Leaving aside other examples of "official acts" by heads of government as excessively inflammatory — just in the last century, Iosef Dzhugashvili, Saloth Sâr, Augusto Pinochet, and our semipuppet Ferdinand Marcos — the Court needlessly conflated "immunity" with "absolute defense." Further, it did/does so precisely by ignoring another American text, also seeking legal process concerning purported "official acts."
[T]he present King of Great Britain…
…has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people[;]
…has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within[;]
…has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries[;]
…has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance[;]
…has has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.
United States Declaration of Independence (02-04 Jul 1776) (in part, in this order).1
The near decade of warfare thereafter — in structure, function, and intent a civil war — demonstrates rather well that whether particular acts of a head of state are "official acts" or "the establishment of an absolute Tyranny over these States" cannot be judged in advance. They are simply not amenable to the broad, overreaching conception of "absolute immunity," because conduct that has the purported end of an "official act" may clearly be done through inappropriate means — means that entirely swallow the official-act ends.
• • •
Perhaps this Court had a failure of the imagination. Perhaps this Court failed to engage with the pervasiveness of post hoc rationalizations among tyrants. Perhaps this Court abstracted its reasoning too far from the particular "official acts" at issue, without ever considering when conflicts of interest and overt abuses of power make those acts less than official even when cloaked in officialdom. Perhaps most of all this Court failed to engage with history of both itself and of this nation.
Perhaps.
Regardless, this decision is wrong on the date of issue.