Donald Trump’s presidency has served as a wake-up call that our Constitution and our laws were not designed to handle an authoritarian. And Thursday’s Supreme Court hearing on presidential immunity was yet another reminder of that fact.
It’s dangerous to try and divine the court’s opinion based on oral arguments; however, the consensus seems to be heading in a direction that says that a president should be immune from prosecution over “official,” but not private, acts. On the surface, this seems like a reasonable precedent. After all, we don’t want a banana republic where former presidents are unfairly targeted for prosecution after they leave office.
Still, this foreboding thought remains: It is virtually impossible to untwine “official” acts from personal crimes. Someone like Trump can always lie about his motives.
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It’s not quite Nixon’s “When the president does it… that means that it is not illegal” formulation, but if this becomes the standard, anything that could even plausibly be considered “official” will be considered official. As Trump’s lawyer argued yesterday, killing one’s opponent could constitute an official act as president.
In light of this thinking, Trump’s attempt to overturn the 2020 election could be framed as a heroic leader acting as the steward of democracy and trying to preserve the sanctity of elections.
As Justice Ketanji Brown Jackson noted, attempting to define what is “official” leads to a “difficult line-drawing problem.”
Presumably, it would require getting inside a president’s head and—as it pertains to his efforts to subvert the 2020 election—making a judgment call on whether Trump actually knew he lost. Questions like this are inherently muddy and subjective, and it is in this “George Costanza-esque” world that Trump almost always thrives and ultimately escapes any consequences.
It is unfortunate that this vagueness in the law (or lack thereof) was baked into the very fabric of our nation. What we are facing (once again) is the knowledge that our system was designed for a president who the Founders assumed would be a person of honor. To be sure, they put in checks and balances; but many of the so-called rules we thought presidents were required to follow were, instead, vaguely defined.
The founders also assumed that if a bad leader were to slip through, other (more principled) political leaders would rein them in.
In this regard, Sen. Mitch McConnell’s gravest mistake—voting not to convict Trump—has come back to bite us, yet again. “President Trump is still liable for everything he did while he was in office… He didn’t get away with anything, yet,” McConnell said in 2021, adding, “…we have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being accountable by either one.”
But now, Trump’s attorney, D. John Sauer, is arguing that a president who committed an official act (which, remember, could include killing a rival or staging a coup) “would have to be impeached and convicted” before losing his immunity.
For what it’s worth, McConnell still disagrees with that interpretation. But that is cold comfort.
The cavalry isn’t coming to save us; the buck really stops with We the People. Still, it is not a reassuring thought. What kind of decent people would elect someone like Trump in the first place?
As John Adams noted, “Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” These words may prove to be sadly prophetic.
Numerous political commentators have noted that the Supreme Court’s decision to take up this question is already a “win” for Donald Trump, in the sense that this issue has already delayed Trump’s criminal case regarding his attempt to overturn the 2020 election. It is likely that his criminal case will not be decided before the election; and if Trump is re-elected, it will probably just go away altogether.
The best we can now hope for (in the face of Trump’s pseudo “win” in the short term) is that the high court might clarify explicit parameters that could prevent Trump (and future presidents) from further exploiting the weaknesses inherent in our democracy.
How, for example, can we disentangle the official acts as president from the private acts? And—while I’m not holding my breath there will be any guidance on this—can a president simply pardon himself?
Although Thursday’s hearing did not instill much confidence, it is entirely possible that the court will provide some clarity for constraining future presidents. That would, at least, be better than nothing.
“I’m not focused on the here and now of this case,” Justice Brett Kavanaugh said on Thursday. “I’m very concerned about the future.”
I, for one, am concerned about both.
