‘No law is above The Man’

Did the U.S. Supreme Court’s recent decision in Trump v. United States hold that American presidents are immune from criminal prosecution for all actions they take while in office?

No.

But it certainly has made it difficult for a prosecutor to prove a criminal case against a president.

The decision was issued in a case brought by special Counsel Jack Smith against former President Donald Trump for Trump’s alleged attempts to overturn the results of the 2020 presidential election. Chief Justice John Roberts wrote the majority 6-3 opinion.

The court’s majority declared that the president has absolute immunity from prosecution for official acts he or she takes that arise from the president’s powers specified in the Constitution.

Another set of official acts — those that arise from a source other than directly from the Constitution — would be presumed to immunize the president from prosecution, but it will be up to the courts to decide whether those acts actually fall in that definition.

The majority ruling also found that presidents are not immune from prosecution in the case of unofficial acts they take while in office, but then made it difficult for prosecutors to bring cases based on such acts by prohibiting the introduction in court of evidence arising from a president’s official acts.

The immunity granted for official acts governs everything, the court found, even when a president’s official act breaks a law. That ruling appears to stretch presidential power beyond the boundaries that most people and most students of the law had thought existed.

And a president’s motives for an official act are irrelevant and cannot be raised by the prosecution in making the case, the decision stated.

The July 1 decision in Trump vs. U.S. therefore gives the president more safety from prosecution, even after he or she leaves office, than that enjoyed by any other American. And more freedom to break existing laws while in office.

One of the things Smith accused Trump of doing was trying to use the federal Justice Department to open false election crime probes in order to persuade state legislatures to question their states’ voting results. Chief Justice Roberts ruled that even if Trump knew his order to the Justice Department was a sham made for improper purposes, he is immune from prosecution because he had authority over the Justice Department, and therefore his order was an official act.

Hard to believe something like that was what the Founders had in mind at the 1787 Constitutional Convention.

Smith also accused Trump of trying to bully then-Vice President Mike Pence into questioning the authenticity of the states’ certified slates of presidential electors submitted to Congress. (The vice president presides over the congressional count of electoral ballots.)  Chief Justice Roberts ruled that if the fact of Trump’s discussions with Pence are found not to threaten the power of the president’s functions, then those discussions can be the subject of prosecution. The district court where the case had originated would have to decide whether such prosecution would endanger or limit presidential power under the Constitution.

And with regard to Trump’s urging of his supporters to descend on the U.S. Capitol on Jan. 6, 2020, in order to delay certification of the election results, Roberts said the lower court would have to decide whether that episode was official or not. He gave little guidance on how the district court is to decide that question.

The entire case will no doubt become moot if Trump wins the presidential election this coming Nov. 5, since he will almost certainly order his new Justice Department to drop the case. In the very unlikely event that the case would proceed and find him guilty after he were to become president again, he could try to pardon himself. That possibility has never arisen in American history.

Senate Majority Leader Chuck Schumer (D-New York) last week introduced a bill, co-sponsored by a significant number of Senate Democrats, that would invalidate immunity if the president breaks the law in performing official acts. But that bill stands little chance of passage because of the Senate filibuster and the Republican-controlled House.

There is also some support in Congress for introduction of a constitutional amendment to accomplish the same thing. But that process is even less likely of success.

So since July 1, the American president now enjoys much greater freedom to break American laws without penalty, if he or she does so in an official capacity.

Traditionally in our nation, Congress makes federal law. The Supreme Court decision, by letting the president break the law in official actions and by letting the courts decide what are official acts and what are not, upsets the checks and balances of our constitutional system in favor of the executive and the judicial branches and against the legislative branch.

Most of us assumed that in the United States, “no man is above the law.” The Supreme Court ruling goes a long way to establishing that “no law is above The Man.”

Rick Morain is a reporter and columnist with the Jefferson Herald.