The Key Detail Missed In Trump's SCOTUS Case
I listened to the oral arguments in the presidential immunity case being heard before the Supreme Court on my way to the office this morning. Bottom line, Trump isn’t going to win this and he could get swept 9-0. Part of his problem is his lawyer’s lack of an answer regarding any form of limitation to presidential immunity. His lawyer was again unable to explain why his version of blanket presidential immunity would prohibit President Trump from deploying Seal Team Six to kill political opponents. The performance was so bad that even Clarence Thomas and Sam Alito seemed to be frustrated at the absurdity of his claims.
But everyone seems to be missing one key implication from the exchange between Trump’s lawyer and the court. Donald Trump’s team thinks he is going to win and this is just an attempt to run out the clock. Watch:
Apparently we were listening to different hearings. This Court will set limits on immunity, but they will not set it aside completely and they'll send it back to the lower court who will be tasked with determining within the allegations, what is an official duty and what was a private action. That's how the constitutional issue will be decided. Trump's lawyers will appeal every action the court deems private, thus delaying the case until after the November election.
This is the most important constitutional case in our lifetime. (Roe/Dobbs is being decided by the states as it should have been. But Roe/Dobbs would not destroy the executive branch of government if decided incorrectly as it was for 50 years.)
If the justices decide against Trump, in the long term we will effectively no longer have a Chief Executive. In many cities the mayor's job is ceremonial and they have no authority over anything. A city manager hired by the city council runs city functions such as the police force, the hiring and firing of city employees, etc. The president will have no authority to do anything. His duties as commander in chief of the armed forces will be curtailed. In this new country, Congress is the city council and civil servants are the city manager. Congress will run the country and the President will do exactly what he is told by Congress or he will be thrown in jail when he leaves office.
Nearly all of the justices made it clear they understand this case has less to do with Trump and more to do with the long term consequences for the executive branch and the office of the president.
It seems to me that presidents are not immune from all laws. For example, they are not immune from being prosecuted for murder, armed robbery, or burglary. They are immune from being prosecuted for any action connected to their official duties. For example, 13 service members were killed in the botched Afghanistan pullout/retreat/surrender. Their families cannot sue Biden for wrongful death, nor can Biden be prosecuted for some type of homicide. It follows that It is well within the scope of a president's duties to ensure that an election was conducted legally, even if he was a candidate in the election. The counsel for the Special Counsel today stated that the President's foremost duty is to ensure the nation's laws are faithfully executed.
This duty includes election laws. Ordering subordinates in the justice department to contact state authorities and in turn ask them to insure an election was conducted legally is within the scope of the president's duties. It doesn't matter when he gives that order, even, as in Trump's case, if he gave the order after election results were certified in a certain state and slates of electors were already submitted to the electoral college.
If Mr. Erickson is correct, the harm to Trump is inconsequential. The harm to this 247 year experiment will be devastating and transformative to world history. The transformation of our Constitutional Republic to a third world banana totalitarian state will be accelerated well beyond its current pace.
I believe I will take the assessment of Turley, McCarthy, and the other top constitutional scholar whose name I cannot recall this moment which is rather different than your assessment. It was pretty clear that some of the justices strongly believe that a president is entitled to a significant degree of immunity. Not complete, but a significant amount.