The reason even Special Counsel Jack Smith acknowledged at least some of the former President’s actions were official is because elections are essentially political and it has been a democratic norm since the dawn of the Republic that political actions are not criminal. The Supreme Court, fortunately, seems to realize this and is likely to rule accordingly.
It should have been obvious since the very first indictments of former President Trump for his alleged transgressions of various laws never used before in this manner that there are foundational issues inherent in all of these cases beyond the simple letter of any particular law. Braying that no one is above the law doesn’t change the reality that the Presidency is a unique office, imbued with powers no one in the entire government possesses, powers that cannot be constrained by the legislative branch, which passes laws in the first place. In other words, Congress can write whatever law it wants in some cases, but those laws don’t necessarily apply to the President. This isn’t some radical new legal theory. It’s the normal Constitutional order, under which the country has operated for well over 200 years and should have been clear to anyone not suffering from a blinding hatred of President Trump. Alas, almost the entirety of the media and the expert class in general suffers from such a hatred and has been unable to grasp the underlying reality that Donald Trump isn’t merely on trial as a man, but as an entire office. Any legal tactic permitted against him as a President will be committed against other Presidents at some point. The Supreme Court itself made this overwhelmingly clear last Thursday, when they heard oral arguments concerning what immunity a President – any President – might have from prosecution after they leave office. Two things were immediately apparent at this hearing that should’ve been the entire time – if the media and the experts were doing their jobs, rather than fulfilling their obsessions with a particular individual they love to hate.
First, the Justices dispensed with the notion that this was about Donald Trump in particular. Special Counsel Jack Smith had been insisting for months that the trial be allowed to proceed as some kind of one-off, where, yes, we may be prosecuting a President for the first time in history, but no, that doesn’t make it significant. In fact, he claimed there’s potential harm in not proceeding as quickly as possible and breaking the democratic norms progressives praise when it suits them, meaning any claims of immunity should be immediately dismissed, citing “the serious harm to the government – and to the public – of postponing the resolution of criminal charges.” “Delay in the resolution of these charges threatens to frustrate the public interest in a speedy and fair verdict – a compelling interest in every criminal case and one that has unique national importance here, as it involves federal criminal charges against a former President for alleged criminal efforts to overturn the results of the Presidential election, including through the use of official power.” He did so even while acknowledging the nature of presidential immunity is almost entirely unresolved – save that it cannot possibly apply here because “the alleged criminal scheme to overturn an election and thwart the peaceful transfer of power to his successor should be the last place to recognize a novel form of absolute immunity from federal criminal law.” The Justices themselves, however, appeared to disagree for obvious reasons. As Justice Neil Gorsuch put it, whatever claims the prosecution is making about the unique nature of the case, “we’re writing a rule for the ages.” “This case has huge implications for the presidency, for the future of the presidency, for the future of the country, in my view,” noted Justice Brett Kavanaugh as well. Ultimately, it should not take a Constitutional scholar to understand that Special Counsel Smith had it backwards. You cannot simply try a former President first and ask immunity questions later. The immunity issue is fundamental to these specific proceedings and all future proceedings. Claiming that former President Trump is essentially a one-off exception, means that all future Presidents can and will be considered the same.
Second and equally obvious, a President enjoys some immunity from prosecution or the office means nothing. President’s can order drone strikes, write sweeping executive orders, and more that the ordinary citizen simply cannot do, and some of these actions in any Presidency are going to lie outside the boundaries of the law, such as when an executive order is overturned by the Courts. To suggest they can be prosecuted for these actions – that the near-sainted Barack Obama himself could stand trial for murder after ordering an extra-legal drone strike on an American citizen, for example – would reduce the office to the whim of the prosecutor and the courts. The question has always been how far this immunity extends and whether President Trump’s actions were within those bounds. There is an argument, which Special Counsel Smith himself made, that they are not within these bounds, claiming that the President has no role in the certification of election results and therefore his actions in the matter were purely political, subject to prosecution. “The president has no functions with respect to the certification of the winner of the presidential election,” Michael Dreeben, a lawyer for the Special Counsel’s team explained to the Court. “So it’s difficult for me to understand how there could be a serious constitutional question about saying ‘you can’t use fraud to defeat that function, you can’t obstruct it through deception, you can’t deprive millions of voters of their right to have their vote counted for the candidate who they chose.’” There is, however, also a countervailing argument, namely that the means to elect a President are defined in the Constitution itself and the President, as the Chief Executive Officer, responsible for enforcing all of the laws of the land, has a duty to ensure there is integrity in the process. The distinction, outlined by several Justices last week, is between public and private acts, where a private act – such as murder, rape, or theft – would be subject to prosecution while a public act would not. In that regard, Chief Justice John Roberts wondered if the entire case against the former President would fall apart if the official acts were removed from the indictment, claiming the prosecution would be left with a “one-legged stool.” Other Justices, such as Ketanji Brown Jackson noted how hard separating the two can be, calling it a “difficult line-drawing problem.” Justice Kavanaugh appeared to go one step further, noting that because these acts could not be separated, there is a “serious constitutional question whether a criminal statute can apply to the president’s criminal acts.”
At the risk of repeating myself, all of this should have been obvious the moment Special Counsel Smith filed these charges, or even earlier when news that charges were likely was leaked as it always is regarding former President Trump. It takes no special legal training to understand the unique role that the President plays in our Constitutional order and the balance of power between the three branches of government. Neither does it require any special insight into history to conclude that once a President has been charged, and the proverbial Rubicon has been crossed, other Presidents will also be charged or at the least, threatened with charges in an attempt to force them into behaving in a certain manner. Somehow, however, all of this was quite surprising to certain segments of the media, as if these ideas had never and could never occur to them in a million years or more. The Atlantic’s David A. Graham opined that the Supreme Court had gone through “the looking glass” on Presidential immunity, referring to the former President’s proposition as “dangerous.” The progressive website Slate.com made similar claims, insisting that any ruling that affirms any presidential immunity was “The Last Thing This Supreme Court Could Do to Shock Us.” As they saw it, “For three long years, Supreme Court watchers mollified themselves (and others) with vague promises that when the rubber hit the road, even the ultraconservative Federalist Society justices of the Roberts court would put democracy before party whenever they were finally confronted with the legal effort to hold Donald Trump accountable for Jan. 6…We promised ourselves that there would be cool heads and grand bargains and that even though the court might sometimes help Trump in small ways, it would privilege the country in the end…We told ourselves that at least six justices, and maybe even seven, of the most MAGA-friendly court in history would still want to ensure that this November’s elections would not be the last in history. Political hacks they may be, but they were not lawless ones.” “On Thursday,” however, “during oral arguments in Trump v. United States, the Republican-appointed justices shattered those illusions. This was the case we had been waiting for, and all was made clear—brutally so. These justices donned the attitude of cynical partisans, repeatedly lending legitimacy to the former president’s outrageous claims of immunity from criminal prosecution.” To arrive at this conclusion, supposed legal experts Dahlia Lithwick and Mark Joseph Stern take their lead directly from Special Counsel Smith, bemoaning the conservative Justice’s concern about the “abstract” principles at play rather than the specifics of any case. They continued, somehow adding the Justices’ gender into the mix, “The prospect of a criminal trial for a criminal president shocked and appalled five men: Thomas, Alito, Kavanaugh, and Gorsuch suggested that Smith’s entire prosecution is unconstitutional; meanwhile, Roberts sounded eager at times to handle the case just a hair more gracefully: by cutting out its heart by preventing the jury from hearing about ‘official acts’ (which lie at the center of the alleged conspiracy). Justice Amy Coney Barrett was far more measured, teasing out a compromise with Dreeben that would compel the trial court to tell the jury it could not impose criminal liability for these ‘official’ acts, only ‘private ones.’”
Thus, we end where we began: The media was shocked to discover that the Supreme Court is actually doing its job, highlighting the real issues that are at stake when embarking on a never before seen trial, and illuminating the boundaries of presidential power. Left unsaid in the notion of public and private acts, is a more fundamental principle that further illuminates the issue. The reason even Special Counsel Smith acknowledged that at least some of the former President’s actions were official is because elections are essentially political and it has been a democratic norm since the dawn of the Republic that political actions are not criminal. The purpose of impeachment is to provide a political remedy for potential wrongdoing in a political office because the Founders feared the criminalization of political behavior, that is the very thing we see are seeing here for these very reasons. At this point, no one knows what the Supreme Court will do, but they are likely to rule as anyone with a clear head should have expected from the beginning by defining the boundary between official and private acts, and sending the case back to the lower court to determine what parts of the prosecution are official and what parts are private. This, however, doesn’t satisfy progressives because for some unfathomable reason they convinced themselves trying a former President could be fast tracked, completed according to their schedule, not the actual courts themselves. Why this would be the case given even a casual experience with the Courts and the old adage that the wheels of justice turn slowly suggests it can take years to reach a verdict in complex cases is also left unsaid, as is why anyone should listen to any of these people anymore. They have long since abandoned offering anything resembling reasoned analysis. They have instead embraced what amounts to George Orwell’s two minutes of hate, where everything and anything is reduced to being either for Trump or against Trump, and anyone who dares find themselves on the wrong side of that line is damned along with facts, history, and logic itself.
Confessions of a Conservative Atheist 