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July 09, 2024

Supreme Court immunity decision 'reshapes democracy'

The U.S. Supreme Court's decision to at least partially affirm former President Donald Trump's claim of presidential immunity has broadened the scope of presidential power and limited paths to accountability, legal experts say.

Chief Justice John Roberts wrote in the majority opinion last week that a president is absolutely immune when executing his core constitutional powers and enjoys the presumption of immunity when performing official acts. The high court said it would not define what official and unofficial acts are at this time but it laid out 10 pages of guidance for lower courts to consider when they revisit the issue.

A presumption of immunity puts the onus on prosecutors to prove that a president's actions are not official when seeking a criminal conviction.

President Joe Biden has been joined by legal scholars and constitutional experts in sounding the alarm on what the repercussions of this decision could be, even beyond Trump.

Redefining presidential immunity

David S. Weinstein, an attorney with Jones Walker in Miami and former federal prosecutor in the Southern District of Florida, told UPI that the ruling broadly expands presidential power.

"A landmark decision that impacts not only the former president but also future presidents," he said. "It really reshapes the democracy we've been used to for over 200 years."

Weinstein explained that the court's interpretation of presidential immunity severely limits the legal recourse that can be taken against a president who engages in unlawful behavior. It also opens the door for some otherwise unthinkable actions.

One hypothetical question that was asked when the issue of Trump's immunity was raised in the D.C. Circuit Court of Appeals has become more valid, Weinstein said. Judge Florence Pan asked Trump's attorney, John Sauer, whether a president could order SEAL Team 6 to assassinate a political rival. Pan said a president giving orders to armed service members would be considered an official act.

Sauer responded with a "qualified yes."

Weinstein said that while he hopes this type of incident will never happen in the United States, Roberts' opinion suggests a president could be considered immune for taking these actions.

"I have to hope the moral compass of this country, despite who's leading, is something that would stop that from happening," he said. "As a hypothetical, it's a valid hypothetical."

Justin Crowe, professor of leadership students and political science at Williams College in Williamstown, Mass., said that the Supreme Court's reaction to this hypothetical has raised some eyebrows, particularly when Justice Samuel Alito laughed off the notion.

"Not to get into the realm of dystopian fiction but this is the kind of scenario that the court has done nothing to set aside," Crowe said. "That seems stunning that a president couldn't face prosecution for that. Maybe if the court gets another bite at the apple maybe the court would specify certain things outside the bounds of immunity. Right now, this decision doesn't make clear what those circumstances would be."

Opening the door to 'rogue presidents'

Stephen Wermiel, professor of practice of law at American University's Washington College of Law, explained why immunity is important to the office of the president. The logic behind the Supreme Court's ruling was likely to ensure that a president has the ability to carry out his duties without fear of litigation. While there is no guarantee that a president will abuse this power, it opens the possibility that one could be emboldened to do just that.

"The immunity ruling opens up the possibility of rogue presidents engaging in conduct that we would view as unconstitutional, unlawful, beyond any reasonable sense of conscience," Wermiel told UPI. "The opinion doesn't provide that accountability or say how it would work."

Wermiel takes some solace in knowing that Congress and the judicial system still stand as potential checks and balances to a "rogue president" though their tools could be limited by the Supreme Court. He also said the high court could clarify its ruling in the future.

Crowe is similarly concerned about how insulating a president from responsibility could have harmful effects on democracy.

"We can't, as a republic, rely on only noble citizens pursuing public office. We have to assume people are going to come along and seek to do bad things," he said. "People that are not going to have the public's interest at heart. So part of the logic of the founders, the genius of American government, is it's set up in a way that doesn't assume everyone who comes into office is going to seek to do good things."

"Once you set things aside, as the president is no longer reviewable by the criminal process and undermine those checks, all it takes is one president who is going to exploit that leniency and leeway the court has given here for our democracy to look quite different," he continued.

Lower courts have been skeptical of Trump's claims for broad immunity, leading to the Supreme Court opinion. It is likely the high court will face this again, but first U.S. District Court Judge Tanya Chutkan will have the opportunity to weigh in. It will be up to her to first parse what constitutes an official act.

Crowe remains skeptical that many of the acts Trump is accused of would be considered official duties of the office of the president.

"It's hard to imagine, for me, how calling state officials and pressuring them to find votes or encouraging them to send false slates of electors or pressuring Vice President [Mike] Pence to engage in some sort of dilatory technique -- it's hard for me to see how those things are part of the president's official acts," Crowe said. "It's not tied to any presidential power. They're not processes in which a president traditionally has a role. The president does not have the power, authority or sovereignty of a king. He is an officer of the United States and a servant of the people."

Crowe expects the argument to be made by Trump's attorneys that the alleged actions are in fact part of the "broad conception of presidential power."

'Broad and disturbing'

While the concept of a president using their authority to assassinate political opponents is alarming, Wermiel said it is more likely they could discuss and engage in other illegal activities without facing prosecution. This concerns him more.

"You could imagine a president exploring different ideas, different modes of conduct with a sitting attorney general that might be illegal or on the cusp and not worrying about it in the least because the president would have absolute immunity," Wemiel said. "That just seems broad and disturbing to me."

The question of Trump's presidential immunity arises from the case against him in Washington, where he faces charges of conspiracy to defraud the United States, witness tampering, conspiracy against the rights of citizens and obstruction of and attempt to obstruct an official proceeding. These stem from his alleged attempt to overturn the results of the 2020 election and his role in the Jan. 6, 2021, insurrection at the Capitol.

The presidential immunity decision could have broader implications on the other cases against the former president as well. This includes the 34 felony convictions he already faces.

Roberts wrote that courts "may not inquire into the president's motives."

The felony fraud case against Trump in Manhattan leaned on days of testimony from star witnesses former attorney Michael Cohen and adult film actress Stormy Daniels to establish the former president's motive for falsifying business documents.

Though most of the crimes Trump was convicted of relate to his actions before he was president, there was evidence retrieved from his time in office. The high court's decision brings into question whether that evidence can be used against him.

Judge Juan Merchan postponed Trump's sentencing in Manhattan until Sept. 18. It was originally set for next Thursday.

"Whether official conduct can be admitted into evidence -- that seemed to go beyond what the court needed to decide," Wermiel said.

Typically when the Supreme Court issues its opinions, justices refrain from weighing in on issues outside of the ones in front of them. That was not the case in Monday's opinions.

Justice Clarence Thomas, in an adjoining opinion, said the appointment of special counsel Jack Smith was improper and that his prosecution cannot proceed.

"A private citizen cannot criminally prosecute anyone, let alone a former President," Thomas wrote.

This is an issue Trump's attorneys have raised to Judge Aileen Cannon in the classified documents case in Florida.

"He just wrote Judge Cannon's decision for her," Wermiel said of Thomas. "This seemed particularly inappropriate. This, to me, was him sticking his thumb in the eye of those who suggest he should recuse himself. Not only is he not recusing, he's going out of his way to undertake commentary on an issue that isn't even directly part of this case and that is an issue that Trump is litigating in other courts."

The appointment of a special counsel, or special prosecutor, is not uncommon. It has been common practice in cases that present some type of conflict of interest for the typical means of prosecution. The Trump administration appointed a special counsel twice. Attorney General Merrick Garland also appointed a special counsel in the gun charges case against the president's son, Hunter Biden.

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