NO MAN IS ABOVE THE LAW? TELL THAT TO SCOTUS!

“The framers did not put an immunity clause into the Constitution. They knew how to; there were immunity clauses in some state constitutions. They didn’t provide immunity to the president. And, you know—not so surprising—they were reacting against a monarch who claimed to be above the law. Wasn’t the whole point that the president was not a monarch and the president was not supposed to be above the law?”

Justice Elena Kagan during oral argument on Trump’s immunity claim, April 26, 2024

“Originalism teaches only that the Constitution’s original meaning is fixed….[a] good originalist judge will not hesitate to preserve, protect, and defend the Constitution’s original meaning, regardless of contemporary political consequences…..”

Justice Neil Gorsuch, Time, September 6, 2019

                    The hypocrisy is sickening. In last week’s Supreme Court debate on presidential immunity, statements by conservative justices suggested fealty to the former president and the MAGA wing of our legal community, as they twisted legal reasoning on its head to give Trump more time to avoid prosecution and conviction for numerous crimes.  It could have been so easy for them.  The federal Court of Appeals decision in February delivered a legal smackdown of numerous Trump arguments and  SCOTUS could have simply declined to hear Trump’s appeal.  The conservatives on the court decided otherwise.   Now, their contortions may lead them to develop yet another “test” by which they will water down a principle articulated by our founders and previous justices that “no man is above the law!”  

A NEW TEST FOR IMMUNITY?

While predicting SCOTUS decisions based on oral argument is always challenging, the debate suggested a ruling that could create various tests for presidential immunity. The court will likely draw distinctions between “official acts'' of a president that will enjoy immunity and his or her so-called “private acts” that will not.  Further distinctions may be made within the “official acts” category that may even impose a requirement of impeachment and Senate conviction before any criminal liability for official acts could attach.  For all of the so-called originalists on the Court, they spent substantial time speculating on the future instead of being focused on what is and what is not in the Constitution. And they continued to express little concern at the suggestion made once again by Trump counsel that a president could direct the killing of a political rival but might enjoy immunity depending on the actions of the Congress. 

Perhaps we should remain optimistic that reason will prevail, and SCOTUS will not read a presidential immunity provision into the Constitution that is not explicitly in the document. But listening to the discussion has caused alarm to those who believe that “equality under the law” is a bedrock principle of a representative democracy.

SCOTUS TESTS UNDERMINED VOTING RIGHTS

In recent years, when SCOTUS develops a new “test,” it frequently has the effect of reducing rights.  Following the passage of the federal voting rights act, our high court in  Reynolds v. Sims held that infringements on the right to vote “must be carefully and meticulously scrutinized.”  As conservatives gained more control of the high court, however, they undermined this principle to the point that federal cases that protect or expand voting rights are now rarely heard by SCOTUS, and, if so, bring little satisfaction to those seeking to protect the franchise.  A key development in the erosion of voting rights was the court’s creation of the so-called “Anderson-Burdick” test.  Under this approach, federal courts must balance the burden on the right to vote against the government’s interest in the law under review. Only if the law imposes a severe burden on the right to vote can it be strictly scrutinized.  This has made it more difficult for federal courts to strike down state laws that impose voting restrictions that inhibit the exercise of the franchise. Consequently, federal courts frequently have upheld state laws requiring photo ID to vote, ruling that such state measures are not unconstitutional, even as the mandate makes voting more difficult. This helps explain why proponents of voting rights are increasingly looking to state courts for remedies, where they can argue that state constitutions, unlike our federal charter, explicitly provides the right to vote.

SCOTUS IMMUNITY DECISION LIKELY TO PLAY INTO TRUMP STRATEGY

It appears that a SCOTUS decision will not end the immunity debate.  The court could easily find that no president enjoys “absolute immunity” while ladening the opinion with so many caveats that its effects will simply prolong the Trump litigation, and effectively hand him a major victory.    New arguments will be brought in the lower courts about whether his activities were “official” or “private,” followed by additional appeals to test the legal sufficiency of those decisions.   Depending on the standards the court might set to grant immunity, the federal criminal cases could slow dramatically and some of the indictments may be put at risk.

No matter the SCOTUS decision, the present trial in New York will not likely be disrupted. The hush money and “catch and kill” schemes did not constitute “official” acts by Trump, since the actions occurred prior to his assuming the Presidency. Ironically, the co-conspirators in the January 6 federal and Georgia cases would still be subject to prosecution, even as Trump could continue to argue his immunity. So too would Trump co-conspirators in “fake electors” cases now pending in four state courts.  In the absence of pardons, accountability will come, but only to some.

Since Trump’s strategy has always been to run out the clock in hopes he could again win the presidency and shutdown his federal cases, SCOTUS contortions will allow him more time and provide him a victory, even if it does not grant him complete immunity.  And it will further fuel the rampant cynicism about our legal system and whether we truly believe in the rule of law.

Proponents of democracy cannot rely on the courts, and certainly not SCOTUS. The next major remedy for citizens comes in this November’s election.  If we are to prevent our slide toward authoritarianism, a major step will involve defeating all that promote it.