I am going to do something up front here that the worst decision issued by the Supreme Court in the last few weeks — and it had substantial competition for that dubious distinction — couldn't be bothered to do: State my a priori assumption so that it may be accepted — or tested. That a priori assumption is:
The exercise of the judicial power (U.S. Const. Art. 3 § 1), whether by a court of review or a court of first instance, requires that each fact relied upon in that exercise be of record — admitted evidence, reliance upon established consensus propositions not otherwise refuted, or binding legislative findings of fact that have met the same standards.
The decision in Trump v. United States, No. [20]23–939 (01 Jul 2024) (PDF >100 pages), is inconsistent with that premise.
The majority opinion presumes that absent immunity, a President will be impaired in performing the official acts necessary to the office's function by fear of later prosecution. Chief Justice Roberts rather buried the lede:
The hesitation to execute the duties of his office fearlessly and fairly that might result when a President is making decisions under “a pall of potential prosecution,” McDonnell v. United States, 579 U.S. 550, 575 (2016), raises “unique risks to the effective functioning of government,” Fitzgerald, 457 U.S., at 751. A President inclined to take one course of action based on the public interest may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office. And if a former President’s official acts are routinely subjected to scrutiny in criminal prosecutions, “the independence of the Executive Branch” may be significantly undermined. Vance, 591 U.S., at 800. The Framers’ design of the Presidency did not envision such counterproductive burdens on the “vigor[]” and “energy” of the Executive. The Federalist No. 70, at 471–472.
Trump at 21 logical/13 literal (brackets in original). The critical phrase — one resembling the nail for want of which the kingdom was lost — is in the middle of the second sentence of that passage: "…may instead opt for another, apprehensive that criminal penalties may befall him…"1 This premise fails on both logic and the vast breadth of historical evidence. It's not that I dissent: It's that reality does. This hypothesis is not fact, and is not based on any evidence in the record — quite the contrary.
Consider, for a moment, the behavioral mechanism assumed to be in operation: That the potential for criminal penalties is both necessary and sufficient to restrict an otherwise-contemplated action by the President. But it didn't deter President Nixon from both conspiring to cover up a crime2 and engaging in unlawful electronic recording.3 It didn't deter other officials from multiple schemes violating multiple statutes in the 1980s. In a broader sense, it hasn't deterred any of the war crimes committed across the world since the close of the Nuremberg proceedings (more than a few by, or in conspiracy led by, heads of government/state). Further instances are not necessary to refute the purported behavioral impetus as either necessary or sufficient. The flip side is, of course, worse: What do those entrusted with absolute power not subject to later examination or question do with it? Didn't the US just celebrate a "holiday" yesterday exemplifying that problem?4
Also relevant but neglected, consider the particular conduct alleged in this matter: Fomenting of violent insurrection opposing election results and interference with operation of the electoral system — both with a conflict of interest that would require recusal of a judge.5 If anything, election integrity requires rejection of conflicts of interest more than any other aspect of a representative democracy.6 Indeed, this is precisely the kind of action for which any representative democracy should demand that officeholders "opt for another" "course of action." This bit of questioning of authority in the context of a court of law considering criminal penalties, of speaking truth to power, is anything but "routinely subject[ing conduct] to scrutiny in criminal prosecution[]" — despite past opportunity. <SARCASM> Oh, wait, actually reading the indictment isn't necessary to advise such broad immunity principles. </SARCASM>
Our system embedding separation of powers; our rejection 248 years ago this week of a tyrant wielding absolute power not subject to later examination; the reality that those with great power are not deterred from exercising it "just" by criminal penalties — all counsel against immunity. Instead, any deterrence must come from their own character and their respect for the form and the substance of Constitutional government. Better still, we should elect candidates of such character that "deterrence" would be superfluous; and, when we don't, we must remain open to retrospective corrective actions not to deter them — but to deter others.
- To even reach this flaw, one must pretend — as did Chief Justice Roberts and the majority — that there is no legitimate relationship between "ends" and "means" relevant to exercise of executive powers, once one determines that those powers are being exercised in an official capacity. The entire point of the Nuremberg proceedings is that as a matter of international law and basic humanity, that is not correct. Indeed, the secession of the colonies from the United Kingdom two and a half centuries ago demonstrates that as a matter of basic principles of governance and the Rights of Man, that is not correct. Once one acknowledges that "ends" and "means" are not completely independent — that desired (or even acceptable) ends limit the means that can be employed; that means employed limit the ends that can actually be achieved — a purported right to never be questioned becomes untenable, and especially so when the means subject to question facially appear criminal in substance. The true protection available to a President who, on perceived grounds of necessity, engages in otherwise-criminal conduct (or conspiracy) in implementing an exclusive Presidential power is not immunity, but a vigorous defense.
- Cf., e.g., 18 U.S.C. § 4 (1948, amd. 1994). There is little question that if the person so charged is him/herself a "judge or other person in civil or military authority," illusory reporting to one's self is not sufficient.
- Cf. 18 U.S.C. ch. 119 (1968 as amd.).
- Ironically, the nation that inspired this, and even the very concept of a fair and free election of the head of government and head of state, went to the polls yesterday (on the mistaken anniversary celebrated by the US) and replaced its head of government.
- 28 U.S.C. § 455. Indeed, as to this particular electoral issue, virtually all of the mandatory grounds for recusal laid out in subsection (b) would apply, and regarding any hypothetical interference with elections at least (1), (2), (3), and (5)(i) in even the most innocent of circumstances. If, that is, there can be "innocent circumstances" for overturning the result of an electoral count based on the candidate's personal perception that it was impossible to lose without an evidentiary basis for that belief. (Darn, that pesky "facts not in evidence" problem again…) Even that discounts conflict-of-interest problems; and there can be no clearer quid pro quo than "altering election results" leading to "continuing in electoral office," at any level.
- Cf., e.g., 18 U.S.C. §§ 595, 610, 2383. As to that last item: The entire point of secession from the United Kingdom was to deny the legitimacy of l'etat c'est moi — the person is not the office.