Retired Justice Stephen Breyer is worried. He worries that the Court he served for 28 years is facing a “decline in trust… as shown by public opinion polls.” No wonder. Even conservative lawyers say that the Supreme Court has its thumb on the scale to prevent Trump from being prosecuted before Election Day, or at any time, for his participation in the events of January 6, 2021.
The early 20th-century journalist Finley Peter Dunne created a fictional character, Mr. Dooley, who cynically quipped, “[N]o matter whether th’ constitution follows th’ flag or not, th’ Supreme Court follows th’ iliction returns.”
Focusing on the Court’s 2022 decision, Dobbs v. Jackson Women’s Health Organization, that eliminated the constitutional right to abortion, Breyer, who wrote the dissent in Dobbs, found his conservative brethren naïve in leaving abortion to the states. As he recently told The New York Times, in the case of abortion, “There are too many questions. Are they really going to allow women to die on the table because they won’t allow an abortion which would save her life? I mean, really, no one would do that.” But don’t hold your breath—they have done just that.
Beyond abortion, Breyer finds fault with the Court’s doctrinal approach—its adherence to originalism, in which the judge must look to the original understanding of the words at the time they were adopted, and textualism, in which the judge places great emphasis on grammar and punctuation in whatever provision is being analyzed.
Breyer sees a flaw in this approach: it ignores the practical consequences of the constitutional rules the Court expounds.
Breyer steered clear of accusing the conservative justices of being supremely partisan or acting in bad faith, but it is hard to arrive at any other conclusion.
Let’s take Trump v. Anderson, where the Court refused to disqualify Donald Trump from the Colorado primary ballot as an oath-breaking insurrectionist under Section 3 of the Fourteenth Amendment—and in doing so, stood originalism and textualism on its head. It is difficult to conclude from the amendment’s text that Trump should not be disqualified. A court found that he engaged in an insurrection: he took a presidential oath to support the Constitution and breached his oath on January 6.
The three concurring liberal justices wanted to kick the can down the road, limiting the Colorado ballot decision to the issue of whether, at this early stage, one state could bind the nation. Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson wanted to leave the question of whether he was disqualified from taking office for another day. In my view, this argument is totally flawed. There are many instances where third-party candidates like Ross Perot or Ralph Nader are on the primary ballot in some states but not others.
However, the conservative majority, including the three Trump-nominated justices, went further and held that it would take an act of Congress to disqualify Trump.
This perverse decision contradicted the Constitution’s text, original understanding, and structure. Section 3 says it takes two-thirds of both chambers to lift a court’s ban on an oath-breaking insurrectionist to hold office. The Fourteenth Amendment empowers Congress to enforce the ban, but according to the text, that is not the only way to decide whether there’s a ban in the first place. But, as the conservative majority would have it, only Congress has that power, which would allow half of the House or, because of the filibuster, 41 out of 100 senators, just by inaction to permit an insurrectionist to hold office. The reasoning is anomalous.
The ghost of the supremely partisan and overreaching Bush v. Gore decision haunts the Court’s Colorado ruling.
The same is true of the presidential immunity decision pending before the Court, where it could issue a ruling that would dwarf Bush v. Gore in its implications. The D.C. Circuit issued a unanimous, and I would say air-tight, opinion that Trump was not immune from criminal prosecution for attempting to overturn the 2020. At oral argument, there was the trenchant question posed to Trump’s lawyer by Judge Florence Pan if a president could order the assassination of a political opponent, assuming he had been impeached and convicted.
Trump’s lawyer’s astounding response: “My answer is a qualified yes. There is a political process that would have to occur.”
But don’t be so sure that the lawyer’s answer was off the wall. It might foreshadow an immunity ruling of enormous magnitude. Trump’s opening brief submitted to the Supreme Court in the immunity case argues that: “The President cannot function, and the Presidency itself cannot retain its vital independence if the President faces criminal prosecution for official acts once he leaves office”; that “A denial of criminal immunity would incapacitate every future President with de facto blackmail and extortion while in office, and condemn him to years of post-office trauma at the hands of political opponents”; and that “The threat of future prosecution and imprisonment would become a political cudgel to influence the most sensitive and controversial Presidential decisions, taking away the strength, authority, and decisiveness of the Presidency.”
What are the core official acts of a president? The dictionary defines “official” as “relating to an office” and “acts” as “the doing of a thing.” Big help. The iconic Judge Learned Hand cautioned judges not to make a “fortress out of the dictionary.” Perhaps Hand was thinking of Nix v. Hedden (1893), where the Court rejected the dictionary definition of tomato as a fruit because ordinary people consider tomatoes vegetables.
Arguably, everything a president does in office is official. But there must be limits. Is it an official act to assassinate a political opponent? Is it an official act to try to overturn an election? Is it an official act to commission a phony slate of electors to overcome the certified vote?
After he left office, Richard Nixon famously told journalist David Frost, “Well, when the president does it … that means that it is not illegal.” But even he quickly qualified it with the statement: “I do not mean to suggest the president is above the law.” Trump has no such compunction.
For me, the Rubicon between official acts and criminal conduct is what lawyers call mens rea, or the intention or knowledge of wrongdoing. In our system, the jury—not the judge—decides whether there is criminal intent.
In Nixon v. Fitzgerald, the Court held 5-4 in 1982 that, under the separation of powers, a former president is immune from civil liability for damages for acts in office within the “outer perimeter” of his official responsibility. But this immunity, thought Chief Justice Warren Burger, who Nixon tapped for the Court, “is limited to civil damages claims,” and would not apply to criminal conduct.
As the majority held in Nixon v. Fitzgerald: “It is settled law that the separation of powers doctrine does not bar every exercise of jurisdiction over the President of the United States.” They continued: “When judicial action is needed to serve broad public interests — as when the Court acts … to vindicate the public interest in an ongoing criminal prosecution … the exercise of jurisdiction has been held warranted. In the case of this merely private suit for damages based on a President’s official acts, we hold it is not.”
As Nixon qualified it, no one is above the law. A strong precedent that there is no blanket presidential immunity is that Nixon, already named an unindicted co-conspirator in the Watergate case, accepted a “full, free, and absolute” pardon from his successor, Gerald Ford, in 1974. Had Nixon been immune from prosecution, no pardon would have been needed.
So, today, the answer must be to let the jury decide whether Trump broke the law and let the voters have the answer before they choose the next president.
Jack Goldsmith, a former Justice Department official in the George W. Bush administration who teaches at Harvard Law School, disagrees. He has been chary about the criminal prosecution of Trump, positing on X that: “Trump’s brief in immunity case raises a key hypothetical for understanding the complexities: Would Prez [sic] Obama be immune from criminal prosecution for targeted killing of U.S. citizens abroad by drone strike without due process?”
Goldsmith surmises that in this situation, “the Court would properly recognize some kind of immunity.” So, he sees the Court’s dilemma as articulating a principle that denies Trump complete immunity but protects presidential prerogatives going forward.
The hypothetical is what Franklin Roosevelt called “an awfully iffy question.” No president until Trump has been indicted criminally for acts in office. Obviously, no court will permit a criminal prosecution of a former president for defending the country in good faith, even if his tactics were ill-advised or the operation failed.
Goldsmith has suggested that the Trump prosecution would be “seen by many” as political prosecution—“a cataclysmic event from which the nation would not soon recover.”
“The prosecution would take many years to conclude,” Goldsmith argues. It “would last through and deeply affect the next election and would leave Mr. Trump’s ultimate fate to the next administration, which could be headed by Mr. Trump.”
Politicized prosecution? That’s why we have judges and juries. But this phantom consideration might influence this supremely partisan Supreme Court and lead it to grant Trump blanket immunity.
