SCOTUS—Up to Its Old Partisan Tricks

Last week the U.S. Supreme Court, in a one-page unsigned order, agreed to hear Donald Trump’s request that it review the decision of the D.C. Circuit Court rejecting his claim of “presidential immunity” in the election interference case brought by DOJ Special Counsel Jack Smith. While the Court’s action is disappointing, it’s not surprising as we have seen this movie before—not once, but twice. Indeed, this is the third time in the last four years that the Supreme Court has agreed to hear a wholly meritless appeal by Donald J. Trump in order to allow him to further defer (if not escape altogether) legal accountability. Both of the Court’s prior efforts to rescue Trump occurred in December 2019 when the Supreme Court agreed to hear Trump’s appeal in two cases seeking disclosure of his tax returns (yes, the very same tax returns Trump had refused to publish when he first ran for President in 2016).

The first appeal arose out of Trump’s objections to a subpoena issued by the House Ways and Means Committee, a committee which has an unqualified statutory right to review a president’s tax returns. The second arose out of Trump’s efforts to quash a subpoena issued by the Manhattan District Attorney who was investigating possible financial and insurance fraud perpetrated by Trump as well as the “hush money” payments made to Stormy Daniels. In both cases, the subpoenas had been outstanding for almost two years before they ever reached the Court. There was no valid argument why Trump’s tax returns should not have been turned over in response to these subpoenas, especially since both the Second Circuit and D.C. Circuit had had found no merit to Trump’s frivolous arguments. Although the Supreme Court ultimately held that the subpoenas were entitled to be enforced, the impact of its decisions to hear Trump’s appeals was that his tax returns were kept under wraps until long after the 2020 election.

It should first be noted that Trump’s assertion of presidential immunity as a defense in the election interference case is wholly devoid of existing legal support. Neither the U.S. Constitution nor any statute enacted by Congress provides a U.S. president with immunity from legal action. Moreover, no court has ever held that a sitting president is immune to criminal liability. The issue of presidential immunity, however, has been raised in the context of a civil litigation. In the 1982 case of Nixon v. Fitzgerald, a contractor who lost a government contract sued Nixon and others for civil damages. In that case the Supreme Court, in a 5-4 decision, held that presidents enjoy absolute immunity in civil actions arising out of their “official acts.” This decision, creating new law wholly apart from any Constitutional or statutory provision, is a prime example of the type of judicial activism recently rejected by the Supreme Court when it overturned its 1973 decision in Roe v. Wade.

In rendering this unprecedented decision, the Court observed that providing a president with immunity “would not leave him with unfettered power”, a fear often expressed by the nation’s founding fathers. In support of its ruling the Court pointed out that there were both formal as well as informal checks on presidential action. In particular, the Court observed that presidents are subject to constant scrutiny by the press in addition to vigilant oversight by Congress. The Court also pointed to other incentives for presidents to steer clear of misconduct, including “the desire to earn re-election, the need to maintain prestige as an element of presidential influence, and the traditional concern for his historical stature.”

The reasoning employed by the Court seems almost quaint in the context of today’s political environment. First and foremost, Congressional oversight has become wholly ineffective. Indeed, it has become a “sick joke” with over 160 Congressional Republicans repeating Trump’s meritless claim that the 2020 election was undermined by voter fraud and a majority of Senate Republicans refusing to convict him in the two impeachment proceedings brought against him. Similarly, oversight by the press has become equally ineffective with Fox News and other right-wing media outlets providing the “news” their audiences want to hear rather than the truth. Not even the $787 million verdict incurred by Fox for propagating Trump’s “Big Lie” seems to have altered their behavior. Nor have the criminal charges pending against Trump in any way seemed to lessen his chances of being re-elected. Quite to the contrary, he has used them to bolster his appeal to MAGA voters. Thus, a doctrine of presidential immunity would appear to remove the last remaining safeguard against a tyrannical president.

The issue of presidential immunity also reached the Supreme Court during the Clinton administration when Paula Jones brought a civil action against Clinton alleging sexual harassment. In that case the Court rejected Clinton’s invocation of the presidential immunity defense finding that Clinton’s alleged wrongful actions had taken place before he had been elected and therefore were not among his “official acts” as president. That same reasoning would seemingly render it inapplicable to Trump’s announced intention to assert a presidential immunity defense in the Mar-A-Lago documents case as all of his actions alleged in that case took place after he had left office.

The more challenging question which arises in the election interference case (and the related case now being prosecuted in the State of Georgia by the Fulton County District Attorney) is whether a criminal action taken by a sitting president can even be considered  an “official act.” The Court in the Nixon case had warned that a president is not necessarily immune from criminal charges stemming from actions (both official or unofficial) taken while in office. Presidents take an oath to support the Constitution and to enforce the nation’s laws, both of which are in direct conflict with the notion that a president should be free to commit unlawful acts. Both Judge Chutkan and the D.C. Circuit Court therefore had little difficulty in concluding that the series of actions taken by Trump both during and leading up to the Capitol insurrection were not “official acts.” They also pointed out that on a motion to dismiss, the court is required to assume the truth of the allegations in the indictment which asserted that Trump committed acts designed to overturn the results of the 2020 presidential election.

It is interesting to note that in accepting Trump’s request for the Court to hear his appeal, the Court characterized the issue before it as being whether presidential immunity pertains when the president (or former president) claims that he/she was acting within the scope of his/her duties. This is how Trump’s attorneys had characterized the issue for the Court. Unfortunately, it is wholly illogical because there wouldn’t be any reason to even apply a presidential immunity defense in the absence of proof that the president’s actions were alleged to have been in violation of the law. Thus, at the very least, the Court should have recharacterized the issue as whether a presidential immunity defense pertains with respect to the actions of the president as alleged in the indictment. Indeed, it is utterly irrelevant whether the defendant claims that he/she was acting in his/her official capacity if no criminal violations are alleged in the indictment.

In view of the lack of Constitutional or statutory support or even prior judicial precedent for a doctrine of presidential immunity and the obvious conflict with the basic Constitutional duties of a president, why did the Court even agree to hear this case. Lisa Rubin, a judicial commentator on MSNBC, has suggested that the Court was aware that Trump planned to assert the defense of presidential immunity in two of the three other criminal cases now pending against him. She surmised that the Court may have wished to address the immunity issue in single decision rather than piece-meal as Trump raised that same defense in these two other cases. To be sure, proceeding in that manner would certainly conserve judicial resources. However, the usual procedure would be to wait until all such cases were on appeal before considering them, just as the Court had done when it considered the two cases involving the efforts to subpoena Trump’s tax returns. Her other theory was simply that the Court once again was trying to throw Trump a life-line enabling him to avoid having his case tried before the elections. This was no small gift as polling data had revealed that as much as 50% of Republican voters would not support Trump if he were convicted.

The Court’s decision to hear Trump’s current appeal (which bears a close resemblance to the two case revolving around his tax returns) is particularly disappointing because the decisions rendered by both the District Court and the D.C. Circuit were narrowly drawn and well-reasoned. They both proceeded from the premise that the allegations asserted in Trump’s indictment were that Trump (acting alone and in conjunction with others) engaged in a series of actions seeking by violence and other illegal means to overturn the results of the 2020 Presidential election. In essence, the lower courts  had ruled that whatever immunity from prosecution a sitting president might seem appropriate, it does not encompass illegal actions, particularly those directed at undermining the Constitutional framework for presidential succession. The absurdity of this assertion was underscored in the oral argument before the D.C. Circuit when Trump’s attorneys stated that presidential immunity should be so all-encompassing that it would protect a president from criminal liability for having ordered military personnel to assassinate a political opponent.

It’s not just the non-existent nature of the asserted defense or even the tortured logic that a sitting president should be immune from prosecution for seeking to thwart a Constitutionally prescribed process for the transfer of power, the timing of and schedule set forth inf the Court’s decision wreaks political bias.

On February 12th Trump requested the Supreme Court to stay his trial in the election interference case before the D.C. Circuit Court had even considered Trump’s appeal of the District Court’s decision rejecting his defense of presidential immunity. In true Trump-fashion, he did not seek to appeal of the Circuit Court’s expedited review, but rather a petition to have the Court further stay proceedings in the case, all in the hope that more time would be wasted until he actually did file an appeal. DOJ Special Counsel Jack Smith countered this move on February 15th with a request that the Court deny Trump’s request or alternatively to treat it as a request for an appeal. At this point two events should be kept in mind: (1) the Supreme Court had previously denied Special Counsel’s Smith’s request that the Court consider an expedited appeal of Judge Chutkan’s rejection of Trump’s presidential immunity defense; and (2) approximately 50% of Republicans had responded to polls saying they wouldn’t vote for Trump if he had been convicted of a crime.

Notwithstanding the obvious pressing nature of the matter, the Court waited another two weeks before responding. In doing so, it chose to call for oral arguments during the week of March 22th. While this may seem like prompt scheduling for the Supreme Court, the week of March 22th is the last week in the Court’s current term during which it will be hearing oral arguments and its decision is not likely to be rendered before the end of the Court’s 2023-23 term in the first week of July. By contrast, in the case of Bush v. Gore, which decided the outcome of the 2000 presidential election, the Court’s decision was rendered within three days after the decision being appealed had been issued. Thus, while the schedule set out by the Court may be much faster than normal, it still is just slow enough to make it unlikely that the trial of the election interference case will take place before the 2024 elections. That’s because Judge Chutkan will need at least two months to complete preparations for the trial so that a trial could not even begin before September by which time voting in many states will have already begun.

In any event, Rubin’s suggestion that the Court may have felt a need to address the scope and application of a doctrine of presidential immunity in a broad ruling would be very problematic for the Court. First and foremost, a majority of the justices profess to be guided by the judicial interpretative philosophy of “originalism.” Stated somewhat crassly, “originalism” dictates  that “if the founding fathers didn’t expressly contemplate a governing principle, the courts are without power to create one.” This rationale underlies the Court’s 2019 decision in Rucho v. Common Cause in which it held that the federal judiciary has no authority to address partisan gerrymandering of election districts (i.e. gerrymandering unrelated to racial discrimination). It also is the basis of the Court’s decision in Dobbs v. Jackson Women’s Health Organization in which it overruled Roe v. Wade, the 50-year old decision protecting a woman’s right to obtain abortion services. In view of the founding fathers’ abhorrence at the notion of an unfettered ruler and the absence of any mention of presidential immunity in the Constitution or the writings of our nation’s founders, this approach to Constitutional interpretation would seemingly have required the Court to summarily reject Trump’s appeal.

Trump’s argument supporting the creation of a presidential immunity defense against criminal prosecution could be based upon the notion that presidents are frequently called upon to make difficult decisions. This would be particularly true in the context of international conflicts when American citizens are present in a war zone. In such circumstances a president’s decision could result in the death of one or more innocent Americans. Trump himself made a number of ill-advised decisions regarding the handling of the Covid-19 pandemic that caused the unnecessary deaths of an estimated 30% (or roughly 330,000) of the 1.1+ million Americans who died as a result of the pandemic. While he had been counseled that the decisions he was making could result in a large number of unnecessary deaths, no one has ever suggested that he be criminally prosecuted for a string of decisions in which he appears to have given his own political aspirations priority over saving the lives of American citizens.

Still in this era of elevated political partisanship, the absence of an immunity doctrine might inhibit presidents from taking action in the public interest which are not free from risks that American citizens will be harmed. On the other hand, adopting such a doctrine might convert our presidents into dictators who feel free to murder their political opponents, a la Vladimir Putin (who just coincidentally is greatly admired—as well envied--by Trump). Moreover, as explained above, there are no other existing guardrails that are likely to prevent this from happening. It's not just that Trump is urging the Court to expand the doctrine of presidential immunity to criminal actions, in the Mar-a-Lago documents case he is also asking the Court to expand that doctrine to cover actions taken while he was no longer president.

Despite the obvious dangers noted above, there is a legitimate argument that presidents should be granted temporary immunity for all of their actions taken while they remain in office. The duties of the president are all-encompassing and making them vulnerable to litigation would not only distract them from those duties, but could well pose a danger to the nation as a whole. This concern is clearly more important with respect to civil actions which could be initiated by a seemingly infinite number of individuals based upon real or even imagined transgressions. Moreover, a president could be sued both civilly and criminally by state officials as Trump is now being pursued by the Manhattan District Attorney, the Fulton County District Attorney and the New York Attorney General. Indeed, a president can even be investigated (or possibly prosecuted) by the Department of Justice as is currently the case against President Biden arising out of his retention of government documents he retained after serving as the nation’s vice president. This argument, however, would not apply to Trump as he is no longer in office and therefore would not even be “ripe” for adjudication in the proceeding now before the Court.

While there are a number of important and unanswered questions about the scope and applicability of a doctrine of presidential immunity, it is not the role of the courts to address issues not actually present in the case before it. That is the function of the Congress. More importantly, issuing a broad ruling as to the appropriate application of a presidential immunity stands in stark contrast to conservative judicial principles which have traditionally guided our nation’s judicial systems. Those principles call for both trial as well as appellate courts to tailor their decisions regarding legal doctrines in the narrowest possible way based on the specific facts of the case before them, rather than laying down broad legal guidelines in anticipation of future disputes which might involve differing fact patterns. By rendering broad judicial rulings, the Courts would, in effect, be legislating and thereby invading the province of the legislative branch of government.

All of this leads to the conclusion that not only was the decision of the D.C. District and Circuit Courts correct, but that the case does not lend itself to the Supreme Court’s providing further guidance on the scope and application of the doctrine of presidential immunity. In short, the total impact of the Court’s decision to hear this case will be to once again provide a life-line to Trump who is now drowning in a sea of litigation.