The decision of the Supreme Court on the matter of Trump vs. United States today was a profound disappointment. It offered little on the critical question of whether Mr. Trump's actions within the Justice Department were official or unofficial acts. Those actions involved replacing certain members of the Justice Department with a new Attorney General (Jeffrey Clark) who wanted to write a letter to various state legislatures suggesting that there were irregularities in the votes cast in the 2020 election which would justify the naming of alternate Electors. The Washington, DC Bar Association moved to disbar Mr. Clark because of these actions, noting that
"'We must do what we can to ensure that this conduct is never repeated. The way to accomplish that goal is to remove from the profession lawyers who betrayed their constitutional obligations and their country. It is important that other lawyers who might be tempted to engage in similar misconduct be aware that doing so will cost them their privilege to practice law. It is also important for the courts and the legal profession to state clearly that the ends do not justify the means; that process matters; and that this is a society of laws, not men,' wrote disciplinary counsel Hamilton Fox III. 'Jeffrey Clark betrayed his oath to support the Constitution of the United States of America. He is not fit to be a member of the District of Columbia Bar.'"
Apparently, the US Supreme Court thinks that Mr. Clark's behavior fell within the scope of Presidential authority. The majority decision held that
"The indictment's allegations that the requested investigations were shams or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial func- tions of the Justice Department and its officials. Because the President cannot be prosecuted for conduct within his exclusive constitutional authority, Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials."
Additionally, the Special Prosecutor, Mr. Smith, charged that Mr. Trump tried to improperly influence the actions of the Vice-President, Mr. Pence, to delay the certification of Electoral votes. The Supreme Court held that "The indictment's allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct."
Critical to both of these findings is the curious statement by the Supreme Court that
"In dividing official from unofficial conduct, courts may not inquire into the President's motives. Such a 'highly intrusive' inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose. Fitzgerald, 457 U. S., at 756. Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law. Otherwise, Presidents would be subject to trial on 'every allegation that an action was unlawful,' depriving immunity of its intended effect."
These presumptions are bullshit. Essentially the Court is holding that subverting a valid electoral outcome is not unconstitutional as long as the subversion is done by the President and anyone who serves under the authority of the Executive Branch. By refusing to examine the motivations for the action, the Court is saying that replacing the appointed Attorney General with someone who would subvert the Electoral College was normal activity within the Justice Department. No one questions whether the President had the authority to name a new Attorney General; the only relevant question is whether that action contitutes a crime against the Constitution.
On this question, the Court punts:
"On Trump's view, the alleged conduct qualifies as official because it was undertaken to ensure the integrity and proper administration of the federal election. As the Government sees it, however, Trump can point to no plausible source of authority enabling the President to take such actions. Determining whose characterization may be correct, and with respect to which conduct, requires a fact-specific analysis of the indictment's extensive and interrelated allegations. The Court accordingly remands to the District Court to determine in the first instance whether Trump's conduct in this area qualifies as official or unofficial."
In this paragraph, the Court contradicts itself. Having said that an inquiry into the motives of the President are not permissable, the Court ends up holding that whether Mr. Trump was taking action to "ensure the integrity and proper administration of the federal election" is something that needs to be determined. The Court apparently believe that the motive of ensuring the integrity and proper administration of the federal election is both legitimate and appropriate.
Now the lower courts have to make such a determination. But is there any reason to think that the Supreme Court lacked the ability to make such a determination? Did this decision require more evidence as to whether Mr. Trump's actions were motivated by his strong desire for a legitimate election outcome? The Court wanted to assure that future Presidents are not paralyzed by the fear of prosecution for official acts. But it now appears that the Court wants lower courts to make such decisions on a case-by-case basis. Future Presidents may not be "paralyzed" by threats to prosecute. However, they will undoubtedly be hamstrung by the Supreme Court's invitation to anyone who differs on the meaning of an "official act" to sue in the lower courts. It has released the Kraken.
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