SCOTUS Fails to Meet the Moment in Trump Immunity Case

The majority opinion of Chief Justice Roberts in Trump v. United States contains two inter-related fundamental flaws. First, echoing a grandiose statement during the oral argument by Justice Gorsuch that the Court must write "a rule for the ages," the majority in Trump sees its role primarily as one of setting a precedent for all potential future Presidents. The Court worries that if it provides Trump with insufficient immunity it will give rise to "an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors . . . ."

Never mind that that is not what's happening here, given that the President's appointed Attorney General was highly reluctant to proceed with the prosecution and then assigned the task to a special counsel. What's most galling about that statement and the entire opinion is the not-at-all-tacit assumption that Trump was a normal President. Yes, of course the Court needs to announce rules that apply to future Presidents as well, but the failure to recognize that the conduct alleged in the indictment poses an existential threat to the continuation of the Republic as a constitutional democracy ought to have led the Court to formulate a rule that matches the moment.

Was it inevitable that the majority--half of whom were appointed by Trump--would not do so? Hardly. The  Court was unanimous in ruling against President Nixon in the tapes case, a decision that foreseeably ended his Presidency. Chief Justice Burger--whom Nixon had appointed--wrote for the Court, joined by both of the other participating Nixon appointees (Blackmun and Powell). (Rehnquist was recused).

The contrast with United States v. Nixon is striking in another regard, pointing to the other fundamental flaw in the Trump ruling. The district court issued its ruling in the Nixon case on May 20, 1974. The Supreme Court granted cert less than a month later. It heard argument on July 8, 1974, and issued its judgment and opinion just sixteen days later. Despite resolving issues of first impression that would set long-lasting precedents--including a key precedent that the Trump Court labored to distinguish--the Burger Court recognized the need to act with alacrity.

The Roberts Court, by contrast, took its time. Yes, the Court added the case to its calendar for this Term, but in every other respect, it has played into Trump's hands by facilitating delay. Even if the Court had ruled against Trump by affirming the D.C. Circuit in every respect, it would have been extraordinarily difficult for Judge Chutkan to conduct a trial before the November election. It is now completely impossible.

The Court's holding ensures as much. Despite the majority's willingness to identify a class of acts--directions to the Justice Department--for which Trump has absolute immunity, the Court refuses to identify any acts that fall clearly on the unofficial side of the line and thus can proceed. Had it done so, Smith could have made the painful but necessary decision to drop all the charges except those that the Supreme Court (in this alternative reality) declared outside the scope of immunity and proceeded swiftly on those. Instead, now the district court will need to conduct adversarial proceedings with respect to every remaining charge to determine whether Smith can meet what the Court decrees to be "the Government's burden to rebut the presumption of immunity."

CJ Roberts got only five votes for that maneuver. He lost Justice Barrett, who would have specified that some acts are clearly unofficial. She identified then-President Trump's efforts to persuade state legislators to disregard their states' elections based on bogus fraud claims. But losing Barrett did not deprive Roberts of his majority, and so if this case is to proceed, every charge must now be scrutinized to see whether the newly established presumption in favor of immunity can be overcome.

Meanwhile, Justice Barrett's partial concurrence is affirmatively harmful in highlighting an aspect of the majority's ruling that is only implicit: after the district court finds that any particular charge can proceed, but before there is a trial, Trump gets another appeal, potentially all the way back up to the Supreme Court. Justice Barrett emphasizes that immunity means immunity to trial, not just conviction, and thus that--by contrast with routine criminal cases--in a case of asserted Presidential immunity, there is an interlocutory appeal. (Interlocutory means before the case is over, here meaning before there is a trial.) The Roberts majority doesn't say anything to contradict that.

Accordingly, even if Judge Chutkan somehow manages to conduct the painstaking review of all the remaining charges before the election, the interlocutory appeal of her decision to allow any of them to go forward will undoubtedly delay a trial, if any, until long after the election. If Trump wins the election, he will surely instruct his Attorney General to dismiss the charges.

Trump will also then be free to order that same Attorney General to commit so many crimes as he wishes, secure in the knowledge that he will enjoy absolute immunity against prosecution for doing so. Or, as the majority blithely puts it, Trump will be free to "fearlessly and impartially" carry out the duties of the Presidency. God save the United States and this once-honorable Court.