Donald C. Brockett is a former Washington state attorney, who served 6 terms as Spokane County Prosecuting Attorney and is now retired after a total of 52 years between public and private practice.
During his time in the prosecutor’s office, he tried numerous cases in the District and Superior courts of Spokane County. For many years, he handled all appeals in the Washington State Supreme Court and later in that court and the newly created Court of Appeals for Division III. He has argued cases in the Ninth Circuit Court of Appeals, and the US Supreme Court
SCOTUS PUNTS TO AVOID DECIDING
COURT AVOIDS DECISIONS BY FINDING NO “STANDING” OR SENDING THEM BACK TO LOWER COURTS
A number of cases that have been issued by SCOTUS will be covered in the coming weeks, however, what may be the most important one was issued last, the immunity case concerning former President Donald Trump. Unfortunately, SCOTUS did not decide it, instead sending it back to the lower court to make some crucial determinations. The opinions are long and many portions will be included to point out the differences between the justices to highlight the separations in their reasoning. I would encourage you to read the entire post because the decision will have a lasting effect in the history of our country for better or worst depending on your viewpoint regarding the outcome.
In Trump v. U.S., Chief Justice Roberts delivered the opinion of the Court, in which Justices Thomas, Alito, Gorsuch, and Kavanaugh, joined in full. Justice Thomas, agreed with the result but filed a concurring opinion. Justice Barrett, filed a separate opinion concurring in part. Justice Sotomayor, filed a dissenting opinion, in which Justices Kagan and Jackson joined. Justice Jackson also filed a separate dissenting opinion.
Chief Justice Roberts wrote that the case involved former president Donald Trump who had been indicted for interfering in the outcome of the 2020 election. Roberts said:
… The indictment alleged that after losing that election, Trump conspired to overturn it by spreading knowingly false claims of election fraud to obstruct the collecting, counting, and certifying of the election results.
Next, he outlined what was charged in the indictment:
According to the indictment, Trump advanced his goal through five primary means. First, he and his co-conspirators “used knowingly false claims of election fraud to get state legislators and election officials to . . . change votes for [Trump’s] opponent, Joseph R. Biden, Jr., to electoral votes for [Trump].” Second, Trump and his co-conspirators “organized fraudulent slates of electors in seven targeted states” and “caused these fraudulent electors to transmit their false certificates to the Vice President and other government officials to be counted at the certification proceeding on January 6.” Third, Trump and his co-conspirators attempted to use the Justice Department “to conduct sham election crime investigations and to send a letter to the targeted states that falsely claimed that the Justice Department had identified significant concerns that may have impacted the election outcome.” Fourth, Trump and his co-conspirators attempted to persuade “the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results. And when that failed, on the morning of January 6, they “repeated knowingly false claims of election fraud to gathered supporters, falsely told them that the Vice President had the authority to and might alter the election results, and directed them to the Capitol to obstruct the certification proceeding.” Fifth, when “a large and angry crowd . . . violently attacked the Capitol and halted the proceeding,” Trump and his co-conspirators “exploited the disruption by redoubling efforts to levy false claims of election fraud and convince Members of Congress to further delay the certification.” (References to sections of the indictment omitted by me)
Based on this alleged conduct, the indictment charged Trump with (1) conspiracy to defraud the United States in violation of 18 U. S. C. §371, (2) conspiracy to obstruct an official proceeding in violation of §1512(k), (3) obstruction of and attempt to obstruct an official proceeding in violation of §1512(c)(2), §2, and (4) conspiracy against rights in violation of §241
Raising the doctrine of Presidential immunity, Trump moved to dismiss the indictment. He argued that all the actions taken as charged in the indictment were covered by the immunity which a president had to have in order to carry out official duties without fearing that after leaving office that president would be charged with a crime or crimes.
The lower court, the District Court, had held:
…that “former Presidents do not possess absolute federal criminal immunity for any acts committed while in office.” And also: “… declined to decide whether the indicted conduct involved official acts.”
Chief Justice Roberts stated:
(a) This case is the first criminal prosecution in our Nation’s history of a former President for actions taken during his Presidency. We are called upon to consider whether and under what circumstances such a prosecution may proceed. Doing so requires careful assessment of the scope of Presidential power under the Constitution. We undertake that responsibility conscious that we must not confuse “the issue of a power’s validity with the cause it is invoked to promote,” but must instead focus on the “enduring consequences upon the balanced power structure of our Republic.
With this quote we might be able to convince others that we do not have a democracy but rather a Republic. There is a difference which should be taught in civics classes so citizens will understand the form of government by which we govern ourselves. Critically, as Chief Justice Roberts says in continuing the opinion:
The parties before us do not dispute that a former President can be subject to criminal prosecution for unofficial acts committed while in office. (Reference omitted by me) They also agree that some of the conduct described in the indictment includes actions taken by Trump in his unofficial capacity. (Reference omitted by me) They disagree, however, about whether a former President can be prosecuted for his official actions.
The opinion continues:
We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity. At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient.
After detailing some of the acts of the President that are “constitutional powers” such as granting reprieves and pardons, and supervising and removing executive appointees, the Court says:
… Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his “conclusive and preclusive” constitutional authority. It follows that an Act of Congress—either a specific one targeted at the President or a generally applicable one—may not criminalize the President’s actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions. We thus conclude that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.
(b) But of course not all of the President’s official acts fall within his “conclusive and preclusive” authority…
Importantly the Court continues with this language:
… To resolve the matter, therefore, we look primarily to the Framers’ design of the Presidency within the separation of powers, our precedent on Presidential immunity in the civil context, and our criminal cases where a President resisted prosecutorial demands for documents.
The President “occupies a unique position in the constitutional scheme,” Fitzgerald, 457 U. S., at 749, as “the only person who alone composes a branch of government,” Trump v. Mazars USA, LLP, 591 U. S. 848, 868 (2020). The Framers “sought to encourage energetic, vigorous, decisive, and speedy execution of the laws by placing in the hands of a single, constitutionally indispensable, individual the ultimate authority that, in respect to the other branches, the Constitution divides among many.” Clinton v. Jones, 520 U. S. 681, 712 (1997) (Breyer, J., concurring in judgment). They “deemed an energetic executive essential to ‘the protection of the community against foreign attacks,’ ‘the steady administration of the laws,’ ‘the protection of property,’ and ‘the security of liberty.’” Seila Law, 591 U. S., at 223–224 (quoting The Federalist No. 70, p. 471 (J. Cooke ed. 1961) (A. Hamilton)). The purpose of a “vigorous” and “energetic” Executive, they thought, was to ensure “good government,” for a “feeble executive implies a feeble execution of the government.” Id., at 471– 472.
The Framers accordingly vested the President with “supervisory and policy responsibilities of utmost discretion and sensitivity.” Fitzgerald, 457 U. S., at 750. He must make “the most sensitive and far-reaching decisions entrusted to any official under our constitutional system.” Id., at 752. There accordingly “exists the greatest public interest” in providing the President with “‘the maximum ability to deal fearlessly and impartially with’ the duties of his office.” Ibid. (quoting Ferri v. Ackerman, 444 U. S. 193, 203 (1979)). Appreciating the “unique risks to the effective functioning of government” that arise when the President’s energies are diverted by proceedings that might render him “unduly cautious in the discharge of his official duties,” we have recognized Presidential immunities and privileges “rooted in the constitutional tradition of the separation of powers and supported by our history.” Fitzgerald, 457 U. S., at 749, 751, 752, n. 32.
Citing the writing of the The Federalist and other considerations Chief Justice Roberts continues:
… 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.
So the Court says:
But as we explain below, the current stage of the proceedings in this case does not require us to decide whether this immunity is presumptive or absolute. See Part III–B, infra. Because we need not decide that question today, we do not decide it….
Drawing a distinction between the acts that could be alleged against a former president, Chief Justice Roberts states:
As for a President’s unofficial acts, there is no immunity… Although Presidential immunity is required for official actions to ensure that the President’s decisionmaking is not distorted by the threat of future litigation stemming from those actions, that concern does not support immunity for unofficial conduct… “[I]t [is] the nature of the function performed, not the identity of the actor who perform[s] it, that inform[s] our immunity analysis.” Forrester v. White, 484 U. S. 219, 229 (1988). The separation of powers does not bar a prosecution predicated on the President’s unofficial acts.
The Court then discusses the fact the lower courts did not examine in detail the charges and consider whether they fit into the “core activities” of the office and the “unofficial acts”. Chief Justice Roberts says:
We offer guidance on those issues below. Certain allegations—such as those involving Trump’s discussions with the Acting Attorney General—are readily categorized in light of the nature of the President’s official relationship to the office held by that individual. Other allegations—such as those involving Trump’s interactions with the Vice President, state officials, and certain private parties, and his comments to the general public—present more difficult questions. Although we identify several considerations pertinent to classifying those allegations and determining whether they are subject to immunity, that analysis ultimately is best left to the lower courts to perform in the first instance.
The Court comes to that conclusion because as the opinion stated:
… Given all these circumstances, it is particularly incumbent upon us to be mindful of our frequent admonition that “[o]urs is a court of final review and not first view.” Zivotofsky v. Clinton, 566 U. S. 189, 201 (2012) (internal quotation marks omitted)
The Court then goes on in detail to “give guidance” to the lower courts regarding how they should not examine the President’s motives to distinguish between “official” and “unofficial” conduct because:
… Such an inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II interests that immunity seeks to protect.”
Chief Justice Roberts then, again, discusses in detail what the indictment alleges and ends this portion of the opinion with a very important distinction:
… The prosaic tools on which the Government would have courts rely are an inadequate safeguard against the peculiar constitutional concerns implicated in the prosecution of a former President. Cf. Nixon, 418 U. S., at 706. Although such tools may suffice to protect the constitutional rights of individual criminal defendants, the interests that underlie Presidential immunity seek to protect not the President himself, but the institution of the Presidency.
It is important to convince those concerned with this decision that the Court had to consider not just the alleged actions of former President Trump, which too many want to solely focus on, but that any determination would affect future presidents.
The decision then discusses the claim that the former president made that “that the indictment must be dismissed because the Impeachment Judgment Clause requires that impeachment and Senate conviction precede a President’s criminal prosecution.” Chief Justice Roberts found little support for the validity of the argument and referred to historical sources to dismiss this claim by saying:
… Hamilton noted that unlike “the King of Great-Britain,” the President “would be liable to be impeached” and “removed from office,” and “would afterwards be liable to prosecution and punishment.” The Federalist No. 69, at 463; see also id., No. 77, at 520 (explaining that the President is “at all times liable to impeachment, trial, dismission from office . . . and to the forfeiture of life and estate by subsequent prosecution”).
The Court then states:
Impeachment is a political process by which Congress can remove a President who has committed “Treason, Bribery, or other high Crimes and Misdemeanors.” Art. II, §4. Transforming that political process into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of our Government.
The conclusion of the opinion for the majority of the Court is worth quoting in its entirety for our guidance:
This case poses a question of lasting significance: When may a former President be prosecuted for official acts taken during his Presidency? Our Nation has never before needed an answer. But in addressing that question today, unlike the political branches and the public at large, we cannot afford to fixate exclusively, or even primarily, on present exigencies. In a case like this one, focusing on “transient results” may have profound consequences for the separation of powers and for the future of our Republic. Youngstown, 343 U. S., at 634 (Jackson, J., concurring). Our perspective must be more farsighted, for “[t]he peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.” Chief Justice John Marshall, A Friend of the Constitution No. V, Alexandria Gazette, July 5, 1819, in John Marshall’s Defense of McCulloch v. Maryland 190–191 (G. Gunther ed. 1969).
Our first President had such a perspective. In his Farewell Address, George Washington reminded the Nation that “a Government of as much vigour as is consistent with the perfect security of Liberty is indispensable.” 35 Writings of George Washington 226 (J. Fitzpatrick ed. 1940). A government “too feeble to withstand the enterprises of faction,” he warned, could lead to the “frightful despotism” of “alternate domination of on faction over another, sharpened by the spirit of revenge.” Id., at 226–227. And the way to avoid that cycle, he explained, was to ensure that government powers remained “properly distributed and adjusted.” Id., at 226.
It is these enduring principles that guide our decision in this case. The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution. And the system of separated powers designed by the Framers has always demanded an energetic, independent Executive. The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts. That immunity applies equally to all occupants of the Oval Office, regardless of politics, policy, or party.
Interestingly, Justice Thomas writes separately in order to examine whether there is a constitutional basis for the appointment for a special prosecutor in a case such as this one. He says:
I write separately to highlight another way in which this prosecution may violate our constitutional structure. In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States. But, I am not sure that any office for the Special Counsel has been “established by Law,” as the Constitution requires. Art. II, §2, cl. 2. By requiring that Congress create federal offices “by Law,” the Constitution imposes an important check against the President—he cannot create offices at his pleasure. If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President.
His opinion discusses in detail constitutional structure and the issue of whether the “special counsel” appointment was authorized. He ends his discussion with this language:
In this case, there has been much discussion about ensuring that a President “is not above the law.” But, as the Court explains, the President’s immunity from prosecution for his official acts is the law. The Constitution provides for “an energetic executive,” because such an Executive is “essential to . . . the security of liberty.” Ante, at 10 (internal quotation marks omitted). Respecting the protections that the Constitution provides for the Office of the Presidency secures liberty. In that same vein, the Constitution also secures liberty by separating the powers to create and fill offices. And, there are serious questions whether the Attorney General has violated that structure by creating an office of the Special Counsel that has not been established by law. Those questions must be answered before this prosecution can proceed. We must respect the Constitution’s separation of powers in all its forms, else we risk rendering its protection of liberty a parchment guarantee.
Examine the words critically as compared to the language of the Constitution. For example, “ … as the Court explains, the President’s immunity from prosecution for his official acts is the law.” The Court says this as if it is established from the language expressed in the Constitution whereas it is because the Court provides the separation-doctrine ramifications it thinks are necessary from that structure. Nowhere in the Constitution is the language specific.The language of the opinion is “Respecting the protections that the Constitution provides for the Office of the Presidency secures liberty.”
The statement is true only insofar as what the Court is going to determine is the meaning of the word “liberty”. What of future cases in which there is a legitimate question about the definition of “liberty”? How those questions are answered will depend entirely on how the case is brought to the court (the question the court is willing to answer in granting review), whether the Court wants to rule on the case or avoid it under their self-created doctrine of “standing”, and other factors that will affect each individual case. Of course, as always it may be decided for us by one person prevailing to form a majority of five against the other four judges rather than with due consideration in a legislative process by our elected members of Congress. So, is this how to run a Republic?
Justice Barrett writes separately in an opinion disagreeing with the approach the majority takes in the case and says:
Properly conceived, the President’s constitutional protection from prosecution is narrow. The Court leaves open the possibility that the Constitution forbids prosecuting the President for any official conduct, instructing the lower courts to address that question in the first instance. See ante, at 14. I would have answered it now. Though I agree that a President cannot be held criminally liable for conduct within his “conclusive and preclusive” authority and closely related acts, ante, at 8–9, the Constitution does not vest every exercise of executive power in the President’s sole discretion, Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring). Congress has concurrent authority over many Government functions, and it may sometimes use that authority to regulate the President’s official conduct, including by criminal statute. Article II poses no barrier to prosecution in such cases.
She says she would then “assess the validity of criminal charges predicated on most official acts—i.e., those falling outside of the President’s core executive power…” Justice Barrett concludes by stating:
The Constitution does not insulate Presidents from criminal liability for official acts. But any statute regulating the exercise of executive power is subject to a constitutional challenge. See, e.g., Collins v. Yellen, 594 U. S. 220, 235– 236 (2021); Zivotofsky v. Clinton, 566 U. S. 189, 192–194 (2012); Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 487–488 (2010). A criminal statute is no exception. Thus, a President facing prosecution may challenge the constitutionality of a criminal statute as applied to official acts alleged in the indictment. If that challenge fails, however, he must stand trial.
Justice Sotomayor, with whom Justice Kagan and Justice Jackson joined, dissented stating:
Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. Relying on little more than its own misguided wisdom about the need for “bold and unhesitating action” by the President, ante, at 3,13, the Court gives former President Trump all the immunity he asked for and more. Because our Constitution does not shield a former President from answering for criminal and treasonous acts, ….
Justice Sotomayor begins the dissent by pointing to the record accepting the claims in the indictment that she argues point to the “election interference” by former President Trump after the 2020 election. For example, she cites the portion of the indictment that he “allegedly “spread lies that there had been outcome-determinative fraud in the election and that he had actually won,”… She then, strangely enough spends a considerable time referring to specific portions of the Constitution and sources commenting thereon whereas previously there has always been an argument contrary to that position. Usually the non-strict originalists argue that the Constitution is a “living document” and the language should be interpreted in order to “update it for an application to modern times”. Her opinion examines the text of the Constitution by stating:
The Constitution’s text contains no provision for immunity from criminal prosecution for former Presidents. Of course, “the silence of the Constitution on this score is not dispositive.” United States v. Nixon, 418 U. S. 683, 706, n. 16 (1974). Insofar as the majority rails against the notion that a “‘specific textual basis’” is required, ante, at 37 (quoting Nixon v. Fitzgerald, 457 U. S. 731, 750, n. 31 (1982)), it is attacking an argument that has not been made here. The omission in the text of the Constitution is worth noting, however, for at least three reasons.
First, the Framers clearly knew how to provide for immunity from prosecution. They did provide a narrow immunity for legislators in the Speech or Debate Clause. See Art. I, §6, cl. 1 (“Senators and Representatives . . . shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place”). They did not extend the same or similar immunity to Presidents.
A substantial portion of the dissent will be presented to see the lengths to which Justice Sotomayor goes to present her argument because she fears the majority opinion will result in former president Trump, and apparently future presidents, becoming “kings”. She continues:
Second, “some state constitutions at the time of the Framing specifically provided ‘express criminal immunities’ to sitting governors.” Brief for Scholars of Constitutional Law as Amici Curiae 4 (quoting S. Prakash, Prosecuting and Punishing Our Presidents, 100 Tex. L. Rev. 55, 69 (2021)). The Framers chose not to include similar language in the Constitution to immunize the President. If the Framers “had wanted to create some constitutional privilege to shield the President . . . from criminal indictment,” they could have done so. Memorandum from R. Rotunda to K. Starr re: Indictability of the President 18 (May 13, 1998). They did not.
Third, insofar as the Constitution does speak to this question, it actually contemplates some form of criminal liability for former Presidents. The majority correctly rejects Trump’s argument that a former President cannot be prosecuted unless he has been impeached by the House and convicted by the Senate for the same conduct. See ante, at 32– 34; Part IV–C, infra. The majority ignores, however, that the Impeachment Judgment Clause cuts against its own position. That Clause presumes the availability of criminal process as a backstop by establishing that an official impeached and convicted by the Senate “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Art. I, §3, cl. 7 (emphasis added). That Clause clearly contemplates that a former President may be subject to criminal prosecution for the same conduct that resulted (or could have resulted) in an impeachment judgment—including conduct such as “Bribery,” Art. II, §4, which implicates official acts almost by definition.
B
Aware of its lack of textual support, the majority points out that this Court has “recognized Presidential immunities and privileges ‘rooted in the constitutional tradition of the separation of powers and supported by our history.’” Ante, at 10 (quoting Fitzgerald, 457 U. S., at 749). That is true, as far as it goes. Nothing in our history, however, supports the majority’s entirely novel immunity from criminal prosecution for official acts.
The historical evidence that exists on Presidential immunity from criminal prosecution cuts decisively against it. For instance, Alexander Hamilton wrote that former Presidents would be “liable to prosecution and punishment in the ordinary course of law.” The Federalist No. 69, p. 452 (J. Harv. Lib. ed. 2009). For Hamilton, that was an important distinction between “the king of Great Britain,” who was “sacred and inviolable,” and the “President of the United States,” who “would be amenable to personal punishment and disgrace.” Id., at 458. In contrast to the king, the President should be subject to “personal responsibility” for his actions, “stand[ing] upon no better ground than a governor of New York, and upon worse ground than the governors of Maryland and Delaware,” whose State Constitutions gave them some immunity. Id., at 452.
At the Constitutional Convention, James Madison, who was aware that some state constitutions provided governors immunity, proposed that the Convention “conside[r] what privileges ought to be allowed to the Executive.” Records of the Federal Convention of 1787, p. 503 (M. Farrand ed. 1911). There is no record of any such discussion. Ibid. Delegate Charles Pinckney later explained that “[t]he Convention which formed the Constitution well knew” that “no subject had been more abused than privilege,” and so it “determined to . . . limi[t] privilege to what was necessary, and no more.” 3 id., at 385. “No privilege . . . was intended for [the] Executive.” Ibid.
Other commentators around the time of the Founding observed that federal officials had no immunity from prosecution, drawing no exception for the President. James Wilson recognized that federal officers who use their official powers to commit crimes “may be tried by their country; and if their criminality is established, the law will punish. A grand jury may present, a petty jury may convict, and the judges will pronounce the punishment.” 2 Debates on the Constitution 177 (J. Elliot ed. 1836). A few decades later, Justice Story evinced the same understanding. He explained that, when a federal official commits a crime in office, “it is indispensable, that provision should be made, that the common tribunals of justice should be at liberty to entertain jurisdiction of the offence, for the purpose of inflicting, the common punishment applicable to unofficial offenders.” 2 Commentaries on the Constitution of the United States §780, pp. 250–251 (1833). Without a criminal trial, he explained, “the grossest official offenders might escape without any substantial punishment, even for crimes, which would subject their fellow citizens to capital punishment.” Id., at 251.
This historical evidence reinforces that, from the very beginning, the presumption in this Nation has always been that no man is free to flout the criminal law. The majority fails to recognize or grapple with the lack of historical evidence for its new immunity. With nothing on its side of the ledger, the most the majority can do is claim that the historical evidence is a wash. See ante, at 38–39. It claims that the Court previously has described the “relevant historical evidence on the question of Presidential immunity” as “‘fragmentary’” and not worthy of consideration. Ante, at 38 (quoting Fitzgerald, 457 U. S., at 752, n. 31). Yet the Court has described only the evidence regarding “the President’s immunity from damages liability” as “fragmentary.” Fitzgerald, 457 U. S., at 751–752, n. 31 (emphasis added). Moreover, far from dismissing that evidence as irrelevant, the Fitzgerald Court was careful to note that “[t]he best historical evidence clearly support[ed]” the immunity from damages liability that it recognized, and it relied in part on that historical evidence to overcome the lack of any textual basis for its immunity. Id., at 152, n. 31. The majority ignores this reliance. It seems history matters to this Court only when it is convenient. See, e.g., New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1 (2022); Dobbs, 597 U. S. 215.
Justice Sotomayor then continues with an extensive discussion of how the majority is mistaken in their decision:
In sum, the majority today endorses an expansive vision of Presidential immunity that was never recognized by the Founders, any sitting President, the Executive Branch, or even President Trump’s lawyers, until now. Settled understandings of the Constitution are of little use to the majority in this case, and so it ignores them.
IV A
Setting aside this evidence, the majority announces that former Presidents are “absolute[ly],” or “at least . . . presumptive[ly],” immune from criminal prosecution for all of their official acts. Ante, at 14 (emphasis omitted). The majority purports to keep us in suspense as to whether this immunity is absolute or presumptive, but it quickly gives up the game. It explains that, “[a]t a minimum, the President must . . . be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’” Ibid. (emphasis added). No dangers, none at all. It is hard to imagine a criminal prosecution for a President’s official acts that would pose no dangers of intrusion on Presidential authority in the majority’s eyes. Nor should that be the standard. Surely some intrusions on the Executive may be “justified by an overriding need to promote objectives within the constitutional authority of Congress.” Nixon v. Administrator of General Services, 433 U. S. 425, 443 (1977). Other intrusions may be justified by the “primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions.” United States v. Nixon, 418 U. S. 683, 707 (1974). According to the majority, however, any incursion on Executive power is too much. When presumptive immunity is this conclusive, the majority’s indecision as to “whether [official-acts] immunity must be absolute” or whether, instead, “presumptive immunity is sufficient,” ante, at 6, hardly matters.
Maybe some future opinion of this Court will decide that presumptive immunity is “sufficient,” ibid., and replace the majority’s ironclad presumption with one that makes the difference between presumptive and absolute immunity meaningful. Today’s Court, however, has replaced a presumption of equality before the law with a presumption that the President is above the law for all of his official acts.
Justice Sotomayor then writes extensively expanding her argument that the majority opinion is wrong and concludes:
The majority’s single-minded fixation on the President’s need for boldness and dispatch ignores the countervailing need for accountability and restraint. The Framers were not so single-minded. In the Federalist Papers, after “endeavor[ing] to show” that the Executive designed by theConstitution “combines . . . all the requisites to energy,” Alexander Hamilton asked a separate, equally important question: “Does it also combine the requisites to safety, in a republican sense, a due dependence on the people, a due responsibility?” The Federalist No. 77, p. 507 (J. Harvard Library ed. 2009). The answer then was yes, based in part upon the President’s vulnerability to “prosecution in the common course of law.” Ibid. The answer after today is no.
Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop.
With fear for our democracy, I dissent.
This statement seems so strange and apparently forgets that the Court dismissed for lack of “standing” a lawsuit brought by several states regarding the improper practices that occurred in the 2020 election. (see my post of February 2022 – “THE 2020 PRESIDENTIAL ELECTION WAS INVALID”) As you may recall, I took the position that, as argued by those bringing the lawsuit, the change in the manner in which the elections were allowed to occur by “non-legislative” bodies in violation of the Constitution, rendered the election results invalid. For that reason, I too “fear for our democracy”, actually a Republic, as a result of decisions by SCOTUS.
Justice Jackson also dissents stating:
JUSTICE SOTOMAYOR has thoroughly addressed the Court’s flawed reasoning and conclusion as a matter of history, tradition, law, and logic. I agree with every word of her powerful dissent. I write separately to explain, as succinctly as I can, the theoretical nuts and bolts of what, exactly, the majority has done today to alter the paradigm of accountability for Presidents of the United States. I also address what that paradigm shift means for our Nation moving forward.
An extensive opinion then considers the dangers of disturbing how the criminal justice system will apply the majority’s factors regardings former presidents as opposed to others in the system. Justice Jackson then states:
For my part, I simply cannot abide the majority’s senseless discarding of a model of accountability for criminal acts that treats every citizen of this country as being equally subject to the law—as the Rule of Law requires. That core principle has long prevented our Nation from devolving into despotism. Yet the Court now opts to let down the guardrails of the law for one extremely powerful category of citizen: any future President who has the will to flout Congress’s established boundaries.
In short, America has traditionally relied on the law to keep its Presidents in line. Starting today, however, Americans must rely on the courts to determine when (if at all) the criminal laws that their representatives have enacted to promote individual and collective security will operate as speedbumps to Presidential action or reaction. Once selfregulating, the Rule of Law now becomes the rule of judges, with courts pronouncing which crimes committed by a President have to be let go and which can be redressed as impermissible. So, ultimately, this Court itself will decide whether the law will be any barrier to whatever course of criminality emanates from the Oval Office in the future. The potential for great harm to American institutions and Americans themselves is obvious.
* * *
The majority of my colleagues seems to have put their trust in our Court’s ability to prevent Presidents from becoming Kings through case-by-case application of the indeterminate standards of their new Presidential accountability paradigm. I fear that they are wrong. But, for all our sakes, I hope that they are right.
In the meantime, because the risks (and power) the Court has now assumed are intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms, I dissent.
As I said before, this is a very different position from the one liberal justices would take on most cases dealing with the history surrounding the meaning of the language of the Constitution. They are usually opting for the Constitution to be a “living document”, subject to interpretation by whatever language needs to be used to reach the result desired by that faction of the Court in applying it for “modern times”. Instead, in this case the majority seems to use that method of constitutional interpretation to decide the case and the liberals are in opposition. We can only hope liberals will remain on this path for future constutional-interpretation cases.
The reason I opted for the “SCOTUS PUNTED AVOIDING ITS RESPONSIBILITY” title is because this issue will be decided by the lower courts first in each case, then it will be reviewed by SCOTUS instead of having it decide the issues presented now. Such a result is very different than a case such as the criminal case of Miranda v. Arizona in which the Court actually dictated the language that police officers are mandated to use when questioning suspects and held the only statements of a suspect that would be admissible after the date of the decision would be those where the warning was given.
As usual, as many would say – the law is whatever SCOTUS says it is at any moment in time.
The opinion can be found here
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