[Richard K. Sherwin] Trump‘s enablers on Supreme Court

The fate of American democracy was on the US Supreme Court’s docket last week as lawyers argued over the nature and limits of presidential immunity. The case before the Court concerns federal criminal charges arising from former President Donald Trump’s alleged attempt to thwart the peaceful transition of power following the 2020 election. The acts charged include fraudulently asking state officials to “find” non-existent pro-Trump votes and coercing Vice President Mike Pence to certify fake electors, whose votes, if accepted, would unlawfully keep Trump in office.

Trump’s lawyers contend that only impeachment by Congress can pierce a president’s absolute immunity. The sweep of this claim is breathtaking. Could a president order the military to assassinate a political rival, asked Justice Sonia Sotomayor. Could he sell nuclear secrets to a foreign adversary or attempt to carry out a coup against the government, asked Justice Elena Kagan.

Yes, Trump’s attorney, D. John Sauer, replied, so long as they were “official acts.” But wouldn’t this embolden future presidents “to commit crimes,” Justice Ketanji Brown Jackson queried. What, she wondered, would prevent a president “from turning the Oval Office into… the seat of criminal activity in this country?”

Or perhaps Justice Brett Kavanaugh’s concern is the greater one: when former presidents are subjected to prosecution, “history tells us it’s not going to stop.” Chief Justice John Roberts seemed to agree: “(You) know how easy it is in many cases for a prosecutor to get a grand jury to bring an indictment.”

Justice Amy Coney Barrett suggested that the whole matter could be simply and quickly resolved if the government limited the charges to “private actions.” After all, all the parties seem to agree that if Trump was not acting in his official capacity as president, he could not claim immunity.

But how does one draw the line between “private” and “official” acts? As Sauer acknowledged, some of the acts involved in the prosecution, like signing a form affirming false election allegations, could be considered private, but others -- like calling the chair of the Republican Party -- would be official.

Adding to the complexity, the federal indictment lays out an “integrated conspiracy.” According to Michael Dreeben, the Justice Department lawyer who argued the case before the Court, even if Trump were deemed immune from liability for his official actions, prosecutors should still be allowed to present evidence about them to the jury because they are relevant to assessing his knowledge and intentions.

Distinguishing official from private acts is not the only challenge. According to Trump’s lawyers, all official acts enjoy absolute immunity from criminal prosecution. But the Justice Department lawyers argue that only “core” official acts merit immunity.

“Core” acts, they contend, are defined by the presidential functions explicitly set forth in Article II of the Constitution. They include actions undertaken as commander in chief (like directing troops on the ground), the power to pardon, and the power to veto congressional legislation. On this analysis, threatening to fire Justice Department officials who refuse to collude in the president’s lie about election fraud, or asking the vice president to refuse to certify official electoral votes, may be official acts, but they lie outside the core and thus are not immunized.

These unresolved issues led Roberts to ask: “Why shouldn’t we… send (the case) back to the Court of Appeals?” Of course, if that were to occur -- and it likely will -- hearings would need to be held to determine which acts are private and which are official, not to mention which are “core” and which are not. That would make it impossible to try the case before the November election, in which Trump is the presumptive Republican nominee. If Trump is reelected, he will no doubt order the Justice Department to drop the case altogether.

In any event, Trump cannot be prosecuted for federal crimes while in office. And, as president, Trump could pardon himself. This explains why delay has been Trump’s chief strategy all along.

Whatever happens, an argument could be made that American democracy is already caught in a desperate spiral of collapse. As Sotomayor put it, “A stable, democratic society needs the good faith of its public officials.” It also needs a generally shared belief that prosecutors will prosecute in good faith, and that presidents will fulfill their oath to faithfully “preserve, protect and defend the Constitution of the United States.”

But this is precisely what advocates of executive immunity, like Justice Samuel Alito, do not assume. For them, bad faith has become the norm, and former presidents must expect to become the target of bad-faith prosecutions, a threat Trump has explicitly invoked. As an advocate of expansive immunity for former presidents, Alito becomes President Joe Biden’s protector, because if Trump is reelected, Biden would be the first to suffer from the “endless cycles of retribution” that Alito foresees.

Alito, in alliance with other conservative judges on the Supreme Court, may ultimately expand presidential immunity to avert what they see as a manifest risk to a “stable, democratic society.” But in doing so, they actualize the very risk they fear. By confirming that bad faith is customary -- that the US has become a country where, as Alito put it, “the loser gets thrown in jail” -- Trump has already won, and democracy has lost.

Richard K. Sherwin

Richard K. Sherwin is a professor emeritus of law at New York Law School. The views expressed here are the writer’s own. -- Ed.

(Project Syndicate)