Supreme Court’s ‘immunity’ ruling is anti-Constitutional & dangerous

The Constitution explicitly prohibits abuses of the powers of public office and specifies that officials are ‘liable and subject to Indictment, Trial, Judgment and Punishment’ for such abuses.

At Democracy Witness, we’ve been thinking a lot about how to respond to the Supreme Court’s majority opinion in the case Trump v. United States. Why not respond immediately, you might ask, when we know the ruling is shocking, dangerous, lawless, and unjustifiable?

• Justice Sonia Sotomayor’s dissent stands as a comprehensive and historic rejection of the majority opinion. It will, we believe, eventually become the governing legal precedent.
• While the Chief Justice attempts to explain away the Constitution itself and grant Presidents powers like an absolute monarch would enjoy, the legal and philosophical logic of the text he produced fails to make the case.
• It is vital that we consider in detail how and why the Constitution effectively overrides this absurd piece of fantasy writing, precisely because the Constitution also empowers judges to interpret the law.
• There is something much more important than reacting immediately, and that is reacting effectively. This leads to the first insight on which our collective national response must be based…

Unlawful acts cannot be considered “official acts” flowing from the Constitutionally authorized duties of the Office of the President.

This has always been the unassailable, universally accepted standard, regardless of political party or ideological persuasion. The American Revolution was founded on the very principle that an unaccountable monarch, acting against the rights and interests of the American people, with impunity, is a criminal ruler whose legitimacy must be rejected.

Even now, allies of Donald Trump are obsessively working to invent one pretext or another to accuse President Joe Biden of crimes. It is they who are engaging in what Chief Justice John Roberts claims to be guarding against: politically motivated investigations designed to disrupt, contain, and maybe punish a rival and critic simply for being a rival and critic.

Donald Trump is the first and only President to go to court to argue that crimes committed while he was in office should be covered by “absolute immunity” in perpetuity. No one anywhere is under any illusion as to why he did this. He knows the evidence against him is solid and due process would not result in acquittal, and he intends to use the powers of the Presidency to serve his own corrupt aims and interests.

So, it is necessary to acknowledge: Chief Justice Roberts wrote his opinion not regarding abstract questions of potential crimes vs. potential political prosecutions. He wrote his opinion knowing the shocking facts of a corrupt President who sought to weaponize the powers of public office to overrule voters, void the Constitution, and seize power as an unaccountable autocrat.

The Constitution is actually explicit on this point: Presidents are subject to the rule of law and are NOT authorized to abuse the powers of public office without legal consequence.

It is also worth noting at least ten provisions of the Constitution make his ruling indefensible and unsustainable:

1. Article I — the whole thing — which recognizes Congress as the first branch. That does not mean it is superior, but it does mean there was a conscious effort to prioritize how and where laws are made; all officials, including the President are bound to operate strictly within the constraints of the law.
2. Article 1, Section 3, which explicitly says any official convicted after impeachment “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
3. The oath Presidents take requiring that the holder of that office serve “faithfully ”, while working “to the best of my Ability, preserve, protect and defend the Constitution of the United States“.
4. The emoluments clause, prohibiting Presidents from taking bribes of any kind for favors delivered through powers of public office or from looting the Treasury. Such prohibitions are essential to preventing authoritarian corruption, which was the purpose of the American Revolution, and such prohibitions are meaningless if they cannot be enforced.
5. The vesting of executive powers: Article II says “The executive Power shall be vested in a President”; it does not say, as Chief Justice Roberts fantasizes, that the President is an entire branch of government. Such an absurd and impractical claim was never considered by the framers, who specifically recognize in Article II, Section 2, as members of the Executive Branch: “the Army and Navy of the United States… executive Departments… Ambassadors, other public Ministers and Consuls [and] other Officers of the United States [including] Heads of Departments.”
6. The Article III “good Behaviour” requirement that federal judges, including Supreme Court justices, may serve only “during good Behaviour”. This means their duty to adhere to the rule of law and prioritize democracy over the whims of the powerful is inescapable.
7. The First Amendment prohibition on abridging the right to seek “redress for grievances”. Democracy and the rights of all citizens’ rights are protected by the requirement that public authority not be used to grant some privileged elites a space for impunity.
8. The Fifth Amendment guarantee to all defendants, including former Presidents, of due process.
9. The Ninth Amendment recognition that rights need not be enumerated to be protected by the Constitution. The Ninth Amendment places human rights above the whims of the powerful, as powers must be enumerated in law to authorize any official act.
10. The Fourteenth Amendment guarantee of equal protection to all persons. No person is unprotected by the rule of law, and so no person is above the law. Impunity is not allowed.

With regard to Justice Sotomayor’s dissent, there is one point to question: Does the Chief Justice really authorize Presidents to assassinate critics and rivals, or to stage an actual coup voiding the Constitution, with total impunity?

With careful consideration of this question, the four bullet points listed at the top of this article seem to provide a clear answer — in line with Justice Sotomayor’s own dissent. The Constitution simply does not authorize Chief Justice Roberts, or any other person, to unilaterally void the Constitution, and the Constitution simply does not authorize Presidents to commit such crimes.

In other words:

• Justice Sotomayor’s dissent should be the governing precedent, as no Supreme Court Justice has any lawful power to ignore the law or to allow anyone else to do so.
• While it appears Chief Justice Roberts wants Presidents to have “absolute immunity” and to be unquestionable and unreviewable by the Courts for “official acts”, the Constitution requires that official acts be limited to those authorized by law.
• While judges are empowered to interpret law, that power is clearly established for the purpose of safeguarding the rule of law. It does not include the authority to grant specific individuals, even by writing a lot of personal reflections on the unique qualities of a particular office, “absolute immunity” for criminal abuses of power. And, the Constitution clearly says in Article 1, Section 3, that any official subject to impeachment “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
• And, to restate the obvious: for democracy to exist at all, unlawful acts cannot be considered “official acts”.

Given this, both prosecutors and lower court judges should uniformly offer the Supreme Court the opportunity to clarify itself and correct the horrific misimpressions created by Chief Justice Roberts’ irresponsible writing. That would mean clearly delineating between official and unofficial acts, by recognizing that clear violations of law can never qualify as “official acts”, including by Presidents, anywhere within the United States.