Trump Isn't Going to Like the Supreme Court's Immunity Decision
 
Anyone who expected the US Supreme Court to give clear guidance on the extent to which former President Donald Trump can be tried (and tried and tried) for the crimes of which he has been accused must surely be disappointed with the complexity of what the justices decided in Trump v. United States. The case was sent back to the lower courts for further proceedings.
 
But clarity shouldn’t have been expected, not least because there are, essentially, no precedents.
 
There’s much in Chief Justice John Roberts’s majority opinion to hearten the former president — part of the indictment brought by Special Counsel Jack Smith will be dismissed. But the prosecution, too, gets an important piece of what it wanted.
 
And although the decision is being reported as a big win for Trump, I’m not sure that’s so.
 
To begin with, the court rightly rejected Trump’s absurd position that a former president can’t be prosecuted for his conduct in office unless he has been impeached and removed. The court also rightly rejected the absurd position of the special counsel that the president enjoys no immunity at all.
 
It’s obvious to everyone that a president cannot do the job if subject to the whims of any prosecutor who might decide to indict him after his term ends for a crime he supposedly committed in office; it’s equally obvious to everyone (well, almost everyone) that the same president, job to do or not, can’t be permitted to pull out a gun and shoot somebody for annoying him.
 
Between those two consensuses lies a gulf too vast to be crossed in a single court decision. Although today’s ruling doesn’t resolve the criminal case, the justices get points for trying.
 
A quick precis:
 
The president is absolutely immune from criminal punishment for “actions within his ‘conclusive and preclusive’ constitutional authority.” The majority gives as examples exercising the pardon power and (apparently) commanding the armed forces. Congress can’t criminalize “conduct within his exclusive sphere of constitutional authority,” writes the court. “Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions.”
 
But most of what a president does will not fall within so clear and sharp a definition. The chief executive also undertakes what the majority labels “acts within the outer perimeter of his official responsibility” — a category, alas, for which the majority provides no clear examples. The court does tell us, however, why the criminalization of such conduct remains a cause of constitutional concern:
 
A President inclined to take one course of action based on the public interest may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office. And if a former President’s official acts are routinely subjected to scrutiny in criminal prosecutions, ‘the independence of the Executive Branch’ may be significantly undermined.
 
For those acts, the president is entitled to a presumptive immunity — that is, he cannot be prosecuted under the Constitution “unless the Government can show that applying a criminal prohibition to that act would pose no “dangers of intrusion on the authority and functions of the Executive Branch.”
 
Finally, there is no immunity for “unofficial” acts, although, as the chief justice ruefully concedes, “Distinguishing the President’s official actions from his unofficial ones can be difficult.”
 
And here’s the part that Trump will probably be happiest to read: Sometimes, “speaking to and on behalf of the American people” will qualify as an official action; and “in dividing official from unofficial conduct, courts may not inquire into the President’s motives.”
 
How does the special counsel’s indictment fare under this test?
 
First, supervising the Justice Department is part of the official duties of the president, so he may not be prosecuted for those conversations. Second, Trump’s pressure on Vice President Mike Pence to find a way to derail the counting of the electoral votes might fall within the outer perimeter of official conduct, so that the prosecution must show that investigating the conduct will not intrude upon the function of the executive branch.
 
The remaining charges — the events of Jan. 6 and the jawboning of other public and private officials to overturn election results — the court sent back to the lower courts to decide whether they were outside the president’s official duties.
 
This is where the majority bestows a major gift on the prosecutors: “There may, however, be contexts in which the President, notwithstanding the prominence of his position, speaks in an unofficial capacity — perhaps as a candidate for office or party leader.”
 
With that single line, Roberts neatly disposes of what might otherwise have been Trump’s strongest defense: that running for reelection is among the official duties of the president.
 
I doubt that the line was included without any thought to its implications. As Justice Sonia Sotomayor writes in a dissent joined by Justices Elena Kagan and Ketanji Brown Jackson, “[t]he indictment paints a stark portrait of a President desperate to stay in power.”
 
And although most presidential speeches will qualify for immunity, the prosecutor might plausibly argue that there is no threat to the workings of the presidency when the government investigates a fiery speech to an angry crowd two weeks before the loser in an election is set to leave office.
 
That’s why I’m not all sure that Trump is the big winner here. If staying in power isn’t an official duty — a point on which I take the entire court to agree — then the former president may yet be in trouble.

(...)
 
Brett Kavanaugh offered an alternative account that sounded a little less bad: “The president’s not above the law, the president’s not a king … the president is subject to prosecution for all personal acts, just like every other American for personal acts. The question is acts taken in an official capacity.”
 
If the conservative majority were to adopt a version of Kavanaugh’s view, two different things could happen. One is that Smith could decide to drop any part of the prosecution that depended on what could arguably be considered official acts, allowing the prosecution to proceed focused solely on Trump’s acts as a candidate, not as president.
 
Justice Amy Coney Barrett all but recommended this course of action to Smith. She walked through the relevant charges one by one, each time getting Trump’s lawyer to admit that the conduct she was asking about was private, not official. She pointed to Trump using a private attorney “to spread knowingly false claims of election fraud.” She quoted the indictment saying that Trump “conspired with another private attorney” on false allegations about the election. Finally, she referred to “three private actors, two attorneys … and a political consultant [who] helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding,” as directed by Trump.
 
Each time, Trump’s lawyer conceded the conduct was private. Barrett was effectively saying that the prosecution could go forward immediately (after the Supreme Court decides the case) provided that Smith follows her roadmap and drops elements of the criminal charges that are arguably official, like Trump deliberating with Department of Justice officials about who would be the next attorney general.
 
If Smith doesn’t take that course of action, the second possibility is that the federal district court would have to decide which parts of the charges against Trump involved private acts as opposed to official acts. Kavanaugh put this possibility directly to Trump’s lawyer. If things go this way, Trump would try to appeal the district court’s decision about what was private and what was official to the Court of Appeals and then to the Supreme Court, essentially guaranteeing that there would be no trial before the November election.
 
The upshot is that, if Kavanaugh prevails, Jack Smith may well have a strategic choice to make with major consequences for the timing of the trial. Drop some of the charges and proceed; or stick to his guns and risk having no trial at all.

A majority of Americans do not think Biden (62%) nor Trump (53%) have presidential personalities and leadership qualities.
 
The last time Americans thought both major party candidates met this standard was in 2012 with Obama (57%) and Romney (54%).

Sotomayor’s dissent sums it up perfectly….
 
Justice Sonia Sotomayor did not hold back in her dissent.
 
“Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today. Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.”
“Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”
 
 
[...]
 
    Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop.
 
    With fear for our democracy, I dissent.

News -- Following the Supreme Court ruling on immunity, Trump's legal team is moving to overturn his New York conviction and suggesting his sentencing hearing next week should be put on hold, a source tells me. More details coming up at 9:00 p.m.

"Orders the Navy's Seal Team 6 to assassinate a political rival?" she wrote. "Immune."
"Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune."
"Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done," Justice Sotomayor wrote. "In every use of official power, the President is now a king above the law."
She was joined in her dissent by the court's two other liberal justices, Ketanji Brown Jackson and Elena Kagan.
Justice Jackson wrote in a separate dissent that the majority's ruling "breaks new and dangerous ground" by "discarding" the nation's long-held principle that no-one is above the law.
"That core principle has long prevented our Nation from devolving into despotism," she said.
Justice Sotomayor argued that the majority had invented a notion of absolute immunity for a president performing "official acts", even though it has at times been assumed that presidents could be prosecuted for things they did while in office.
She was visibly emotional as she spent more than 20 minutes reading out parts of her opinion on Monday.
She cited Richard Nixon getting pardoned by the president who succeeded him, Gerald Ford, for using his official powers to obstruct an investigation into the Watergate burglary - the scandal that eventually led to Mr Nixon's resignation.
Those involved in the case were under the presumption that Mr Nixon did not have immunity and could be prosecuted after leaving office, Justice Sotomayor wrote.
Her opinion went much further back in history as well. She quoted US Founding Father Alexander Hamilton, who wrote that former presidents would be "liable to prosecution and punishment in the ordinary course of law".
But the majority opinion, written by Chief Justice John Roberts, argued that the dissenters "strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today".
He wrote that the liberal justices were "fear mongering on the basis of extreme hypotheticals" and dismissed their legal reasoning as weak.
Normally, court dissents include the word “respectfully” but Ms Sotomayor signed off hers by writing: “With fear for our democracy, I dissent.”