We’ve been telling you for years: the Conservative Legal Movement is not a serious intellectual venture. They do not bring different perspectives to our democratic project; they want an entirely different, and undemocratic, one. They neither honor nor learn from history; they scorn precedent, evergreen tradition, and instead merely wield demonstrably errant historical practice against modern correction. They seek no meritocratic rule of law, but dominion of a wealthy and chosen few. Law binds us; not them. Having already exculpated Donald Trump’s putsch by delay, they now confirm by decision. Balls and strikes my ass.
The Court tells us that “enduring principles” of Constitutional law absolve the President absolutely from criminal prosecution within his core constitutional remit and absolve him presumptively (and probably absolutely) for official action unless prosecution presents no “dangers of intrusion on the authority and functions of the Executive Branch.” We are apparently to celebrate his continued liability for unofficial acts. Much has been written already; I will endeavor unique points.
1. Spare me the formalism—so often reactionaries’ favorite plaything. Let us masquerade logician while ignoring practical consequences. Recall the Ecstasy of Saint Antonin, “It is the proud boast of our democracy that we have ‘a government of laws and not of men’”—demanding that the Court insulate the Reagan Administration from the consequences of lying to Congress.[1] The President can fire any prosecutor Congress can appoint. Won’t someone think of the enduring formal classifications of executive and legislative power! Or, in plain English: absolute criminal immunity for sitting (Republican) Presidents. Unsurprisingly, principle divorced from reality proves no principle at all.[2]
2. Even indulging the Chief’s theory, formalist distinctions make little sense here. Find me a scenario in which the President of the United States acts without implicating, at least implicitly, the inherent authority and coercive power of the office. So please excuse my disagreement with Justice Sotomayor, op. at 3; the President’s core constitutional authority is absolutely relevant to this case and I’m not sure how it couldn’t be. When anyone storms the Capitol because the President told them to it will have been precisely because the President, the Commander-in-Chief and Chief Law Enforcement Officer, told them to. If our analysis of the propriety of a criminal prosecution of a former President turns on formalist categorization, whether he directed the Marines, the FBI, ICE, or a hitman to assassinate a political rival, our Constitutional safeguards have already failed.
3. But that’s the point, isn’t it? Law is practice first, theory second—ask the women fleeing Republican States for life-saving medical care. As Justice Robert Jackson recognized in the Youngstown Steel Mill case (and as the Court mis-cites over and other), we enact either a functional separation of powers, or none at all. The Court eschews the former. Yet its formalist bounds prove so self-defeasibly malleable that one must presume it deliberate; no one’s that stupid, right?
Consider the facts really driving the matter. Surely wielding the military or FBI in a coup or to otherwise quash electoral results falls outside the President’s constitutional purview (isn’t that the point of electing presidents?). A good-faith interlocutor may do much reason with shoddy tools. But this court is not a good-faith actor. Before we even consider the Court’s decades long voter suppression (how democratic), its bending over backwards to defend President Trump’s unlawful policies (remember the Muslim ban?), or the fact that it has already by mere delay exculpated the man, that it does not answer “yes” to the actual question—can a former-President be criminally prosecuted for a coup—tells us all we need to know about its allegiances.
This Court will analyze a Republican coup d’état not as unprotected unofficial action but as the President’s untouchable core Commander-in-Chief and law enforcement powers. Same goes for assassinating or imprisoning a rival or troublemaker. Or for engaging other actors, outside of the President’s core Article II control, if either of their official duties are vaguely involved. Hell, even the President’s use of the bully pulpit must fall within the realm of immunity. Don’t fall for the Court’s faux remand of that issue. If the Court cared to rule that a President did not enjoy immunity for inciting a mob to storm the Capitol, it would have said so. Op. 19–23.
3. The Chief’s dysfunctional notion of the separation of powers appears predicated on a teenage dream of the President as a rugged man (and reading this decision, it is a man) in uniform, who gets results precisely because he doesn’t play by the rules. Why should the President need criminal immunity? Well, the duties require his “unrivaled gravity and breadth.” “[C]ommanding” in wartime, generous in peace, adept in ambassadorial “relations,” his authority “stems” both from Congress and his own Constitutional remit. Indeed, “energetic, vigorous, decisive, and speedy,” yet still capable of “sensitive and far-reaching” thoughtfulness, he “deal[s] fearlessly” with our nation’s troubles. At bottom, his “singular importance” and “sheer prominence” must “arouse the most intense feelings” by all of his subjects. Op. at 6–11.
Steamy. If you are among the many Americans—of whatever sexual orientation—who favor expanding Presidential immunity, by all means celebrate this decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to an overlord. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.[3]
I hesitate to engage much further lest I give the impression that this decision contains a modicum of serious intellect. It does not. Yet a few more issues bear discussion.
4. Multiple commentators have already noted how the Court’s ruling that official action may not be used in evidence entirely exculpates the President for bribery. Payment for what? That’s official action. The jury can never know. It likely gets worse. Living in official housing, surrounded by advisors at all hours, spouse (and even other family) holding official duties, working on official phones, computers, and emails, and recorded by official tapes, the President lives in an official bubble. What meaningfully and only private evidence can escape? Can we really trust this Court not to find that a subpoena of a (Republican) President’s text messages does no injury to the prestige of the office?
5. Recall again that the Chief never addresses the specific question presented. His belabored legal formulation hovers in the clouds with formal classifications of Presidential action, discussions of civil damages immunity, and the need for, ahem, vigorous executive action. He neither asks nor answers, as a matter of law, whether our Constitutional tradition tolerates a President’s exhaustive and violent subversion of electoral results—a coup. True, he fondly recounts softened allegations, but only for cover. In the next breath vague abstractions return: discussions with the Attorney General regarding law enforcement proceedings, discussions with the Vice President regarding his electoral duties, etc.
Now set aside the merits. This is bad just legal writing. Answer the damn question. That is the lawyer’s job. It’s also bad judging—some might say activist. Whether framed as judicial humility or adherence to our long-tradition against advisory opinions (pontifications on potential future issues), judges should answer the question presented or close their mouths. Yet across 42 pages, the Chief evades it.
6. Reading, it appears, is hard. After decades wielding irrational textual myopia to impose reactionary policy—who could forget Biden v. Nebraska, where the Chief reasoned that President Biden couldn’t “waive” student loans because Congress wrote “waive or modify” and “modify” is such a small word, or, even most recently, Justice Thomas’ strained and ammosexual reading of the National Firearm Act quashed the bump-stock ban in Garland v. Cargill—the Court now trots out an overwhelming Presidential immunity predicated on vibes. Not only does the Constitution contain no Presidential Immunity Clause, it commands otherwise:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
The Chief somehow grasps that the clause separates impeachment and criminal proceedings (historically, impeached ministers had a nasty habit of losing their heads upon conviction) and achieves the bare minimum of rejecting the laughable notion that a President must be impeached and convicted before he can be indicted. Yet despite the plain language directing that Officers of the United States—of which the President stands as the highest—may be criminally indicted for behavior regardless of impeachment proceedings, the Chief reaches the opposite conclusion: broad criminal immunity. The decision leaves no doubt how the Chief reached that conclusion. His entire discussion extending the President such broad immunity ignores this Constitutional text—never once citing it (proof). Thus, John Roberts, famed institutionalist, delivers us unto a reality in which official action, for which the President may have been impeached and removed from office, is now immunized from further criminal liability. Sotomayor op. at 22.
7. Who’s in office? The Chief details the paramount important of deference to Presidential authority. But for some reason, this always weighs in favor of the former-President seeking to avoid prosecution and not in favor of the current-President bringing the charges. Of course prosecuting a former-President impairs the dignity of the office. But so do the former-President’s misdeeds. Who wields the prosecutorial discretion to decide whether to charge or not? “[E]nduring principles” of constitutional law answer: prosecutorial (executive) authority rests with the current-President. John Roberts now answers: me. So too with sensitive information that might be revealed in the course of prosecution. Who has nearly unreviewable discretion to classify or declassify sensitive information on behalf of the United States? The sitting President. Who now gets to balance the need for secrecy against the need for uniform application of the criminal law to a former-President? John Roberts again answers: me.
8. Reasonable people have asked whether the Court’s broad remand at least demonstrates a degree of trust in the District Court’s discretion. Not at all.
Set aside the Court’s recent troubling trend of ignoring District Court’s findings of fact in voting rights cases. See, e.g., Alexander v. South Carolina NAACP. Jones v. Clinton illustrated the Court’s genuine former trust for United States District Courts. There, the Supreme Court both empowered the trial court on remand to hold trial during President Clinton’s term of office and committed the general direction to avoid interfering with effective functioning of the Executive branch to the trial court’s “broad discretion.”[4] Here, in contrast, the Court utterly rejects even the notion that the District Court might ably handle the delicacies of jury trials involving any official evidence. Op. at 31.
This proves all the more galling considering that it displays substantially less trust in the Federal trial courts than Congress has enacted via state. The Classified Information Procedures Act of 1980, for example, directs District Judges to review invocations of the State Secrets privilege in criminal proceedings to determine both its relevance to the matter and whether an adequate synopsis or concession of fact can be provided to the defense and jury.[5] Except, now, when the sitting President determines that a former-President’s crimes warrant such possible revelation. Such trust. John Roberts, institutionalist.
9. One final point. Readers of any of these opinions would be excused for believing history started in 1789, or perhaps 1776, as no justice really (Clarence’s irrelevant fan fiction doesn’t count) grapples with our constitutional tradition. Eight-hundred-odd years of that tradition illustrate even the King’s limits at law. As arbitrary and capricious as it could be, the King’s governance historically required the advice and consent of his magnates, then the Lords, and ultimately the whole of Parliament, who, by the way, controlled taxation—where else did the notion of no taxation without representation come from? Long ago Parliament exercised a soft electoral prerogative, ratifying Henry IV, Edward IV, and Henry VII’s deposition of their priors. And in the century leading up the American Revolution, Parliament had executed one king (Charles), tried a weird Puritanical military interregnum (Cromwell), tried a few others from the family (Charles II, James II) including inviting a foreigner who’d married in (William & Mary), tossed the entire family (after Ann), and invited an entirely new foreign family in to rule (the Hanoverians). A rough sketch to be sure; not everything lines up perfectly. The Founders sought to standardize much of these informal checks via elections and by separating impeachment from criminal law. But it should be clear enough—a point event the dissents entirely miss—it’s no fair calling John Roberts’ conception of the President a “king” because even in our tradition, the King was never really above the law.
So—where do we go from here? As I’ve already written, Democrats—Joe Biden—in particular bear as much blame for this decision as John Roberts does. Trust your enemy; demand of your supposed ally. Donald Trump’s January 6th Putsch marked an inflection point, either to normalize the Right’s political violence or to decisively quash it. Despite the consistent lesson of history, and the Constitutional prerogative to do so, Biden did not arrest the insurrectionist former-President by noon on January 21. And atop the lack of meaningful personal consequences, Joe Biden and the Democrats have enacted no institutional consequences. Despite the sterling precedent of the December 1865 Congress, insurrectionist Republicans have been allowed to remain in Congress. Apparently content with the Supreme Court’s vendetta against voting rights, Biden and the Democrats have passed no comprehensive voting rights legislation—legislation which would hobble the antidemocratic Republicans for a generation—and have left the enslaver’s filibuster untouched in the already minoritarian Senate.
With gratitude for the good that President Biden has done, particularly with the NLRB, he has eschewed efforts protect and entrench that good, and has instead sleepwalked himself into a contested election. In short, Joe Biden’s (and the Democrat’s) fear of governance has given John Roberts all the confidence he needed to extend more-or-less absolute criminal immunity to Presidents. That is why Joe Biden should be considered a failed President. That is why I expect him to lose to Donald Trump this November. Oh, and apparently you all finally realized his brain turned to mush years ago.
It only seems worn out cliché until it happens. Some decades contain weeks. Some weeks contain decades. Republicans have proclaimed an antidemocratic and antigovernment project for decades. These past few weeks, in gutting administrative agencies, exculpating an insurrectionist, and promising him immunity, they achieved much that they have waited so long for. And Democrats watched.
[1] Morrison v. Olson, 487 U.S. 654, 665–66 (notice whose original (mis)conduct triggered Congress’s curiosity: EPA Administrator Anne Gorsuch Burford—yes, Neil’s mom), 697 (Antonin’s death screech) (1988).
[2] Or, as Jaffa quotes Churchill in Crisis of the House Divided, “The only way a man can remain consistent amid changing circumstances is to change with them while preserving the same dominating purpose.”
[3] Obergefell v. Hodges, 576 U.S. 644, 713 (2015).
[4] 520 U.S. 681, 706–08 (1997).
[5] United States v. Song, No. 21-cr-00011, 2021 WL 1164843 (N.D. Cal., Mar. 26, 2021).