Supreme Court Immunity Ruling Delays Justice for Jan. 6 and May Deny It | Opinion

On July 1, when considering the election subversion claims against former president Donald Trump, the Supreme Court confirmed what every American should know deep in their bones. As Chief Justice John Roberts put it in the majority decision: “The President, charged with enforcing federal criminal laws, is not above them.”

In 1789, with this in mind, we made law supreme in this country. We adopted a constitution in the name of “We the People.” It crowns no one. Instead, it balances power among the Congress, the judiciary, and the president. It requires the president to “faithfully execute the laws.” We shouldn’t want it any other way.

In Trump’s case, the court got the basic idea right that no one is above the law but then shaved a good bit off the top. It held that when exercising his “core constitutional powers” the president cannot be criminally prosecuted just because a prosecutor doesn’t like his Supreme Court picks, his decision to fire a cabinet member, or his decision to pardon a deeply unpopular felon.

On shakier ground, it held that the president is also “presumptively immune” from criminal prosecution for other “official” decisions outside of the core constitutional powers unless prosecutors can prove something overly broad and shabbily subjective: that charging the president would pose no “dangers of intrusion on the authority and functions of the Executive Branch.”

Most important, the court recognized that the president cannot be lawless in his personal conduct. Contrary to Trump’s claims and the fears expressed by the dissenting justices this ruling offers no immunity to a president who wants to shoot his political rivals or his mistresses, or members of his staff who have fallen out of favor.

But here’s the big trouble with the decision. Ultimately it turns on two favorites of the conservative majority: form-over-substance and semantics. The Supreme Court held that courts can’t question why the president takes an official act—even if it’s to help him commit a crime. They must merely look mechanically at the fact, for instance, that presidents doing their duty talk about prosecutions with their attorneys general and about many things with their vice presidents.

Wordplay decides the rest. The court saw the former as a “core” official function and the latter as “presumptively” official. Thus, Trump can’t be prosecuted for trying to coerce the Justice Department into supporting his false election fraud claims but might be prosecuted for trying to coerce Vice President Michael Pence over the status of electors. To the court, it’s this way solely because, regardless of content, the Pence communication is less presidentially routine than the Justice Department contacts. It didn’t matter to the Court that both acts are alleged to be part of the same scheme to rob us of our democracy.

Mercifully, the Court didn’t hold that Trump’s talks with local officials, lawyers, politicians or the Jan. 6 mob in furtherance of his scheme were official acts, but it didn’t say they weren’t either, and the Court set up a second mischief in deciding to send that issue back to the lower court in the way it did.

Thanks to the court, it’s official: the American public will not know before the presidential election whether one of the candidates is guilty or innocent of a monstrous attempt to overthrow the results of a legitimate election by fraud and violence.

That’s because—in another form-over-substance move— the court held that the question of “official” versus “unofficial” is a preliminary question. It must be decided by the court before trial, and regardless of outcome it will result in a whole new time-devouring appeal. Under the process set up, if Trump wins, he can throttle the prosecution with the broad power to instruct his attorney general that the Supreme Court recognized in its opinion. If he loses, it may be another four years before he faces any consequences.

The opinion reminds us of a few core realities of contemporary courts. They are formalist—too often they see the trees and forget the forest. They seek to assure us with what looks like objective process—scrutinizing word choice and placement in the way the Supreme Court did in the bump-stock case and did here with its “official” versus “unofficial” distinction. All the while it gives short shrift to the core human dilemmas in play—that bump stocks allow killing on the same scale as machine guns, and that on Jan. 6, 2021, we all watched an attempted coup d’etat on television. Perhaps worst of all, the timing of the opinion and what it orders next confirms the bitterest reality about today’s judiciary: courts are increasingly incapable of deciding cases in time for the results to be relevant.

Thomas G. Moukawsher is a former Connecticut complex litigation judge and a former co-chair of the American Bar Association Committee on Employee Benefits. He is the author of the new book, The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It.

The views expressed in this article are the writer’s own.