The US Supreme Court Outs the Imperial Presidency
The US Supreme Court has much to answer for. In the genius of republican government, it operates as overseer and balancer to the executive and legislature. Of late, the judges have seemingly confused that role.
In contrast to its other Anglophone counterparts, the highest tribunal in the US professes an open brand of politics, with its occupants blatantly expressing views that openly conform to one side of the political aisle or the other. Not that the idea of a conservative or liberal judge necessarily translates into opposite rulings. Agreement and common ground can be reached, however difficult the exercise might be. Justice should, at the very least, be seen to be done.
The current crop, however, shows little in the way of identifying, let alone reaching common ground. Firm lines, even yawning chasms, have grown. The latest decision on presidential immunity from criminal prosecution is one such case. On July 1, the majority of the court held by six to three that a US president, including former occupants of the office, “may not be prosecuted for exercising his core constitutional powers, and he is entitled, to a minimum, to a presumptive immunity from prosecution for all his official acts.”
Throughout the sequence of decisions, which began before the trial judge, Tanya Chutkan, Donald Trump has argued that he should be immune from prosecution, notably regarding federal charges of subverting the results of the 2020 election. Those actions, he claims, formed part of his official duties. Furthermore, as he suffered no conviction or either impeachment, he could not be tried in a criminal court.
The decision offers a grocery basket of elastic terms that will delight future litigants. The total immunity, the decision states, covers “core constitutional powers”. The president, former or sitting, further had “presumptive immunity from criminal prosecution” regarding all discharged official acts as a function of the separation of powers. Falling for giddying circularity, the majority opinion goes on to remark that the immunity “extends to the outer perimeter of the President’s official responsibilities, covering actions so long as they are not manifestly or palpably beyond his authority.” It does not, however, extend to “unofficial acts” or “unofficial conduct”.
The majority was also of the view that no court should inquire into the President’s motives when distinguishing official from official conduct. “Such an enquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II interests that immunity seeks to protect.” This shielding does have a remarkable effect, granting the president uncomfortably wide powers regarding decisions that can involve breaching the very laws the office is intended to protect.
The decision magnifies the scope of presidential power. One might say it invests that power with imperial, distinctly anti-republican attributes. For decades, it had been assumed that presidents would be spared civil suits to, in the words of the majority, “undertake his constitutionally designated functions effectively, free from undue pressures or distortions.” To take the immunity to cover breaches of laws the executive is bound to be faithful in executing is a quite different creature. To suggest that would be to echo, as indeed US District Court Judge Chutkan opined in December 2023, of a “divine right of kings to evade criminal responsibility.”
The three liberal justices violently disagreed with the majority in a judgment authored by Justice Sonia Sotomayor. “Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.” The dissent excoriates, not merely the reasoning of the court but the man whose actions it will benefit. “Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent.”
According to the lashing words of Sotomayor, the majority had invented “an atextual, ahistorical, and unjustifiable immunity that puts the President above the law.” From the outset, it was unnecessary to make any finding on absolute immunity on the exercise of “core constitutional powers” given the facts outlined in the indictment. This was further “eclipsed” by the decision “to create expansive immunity for all ‘official act[s]’.” Whatever the terminology used – presumptive or absolute – “under the majority’s rule, a President’s use of any official power for any purpose, even the most corrupt, is immune from prosecution.”
With withering ire, Sotomayor also thought it “nonsensical” that “evidence concerning acts for which the President is immune can play no role in any criminal prosecution against him.” It would make it impossible for the government to use the President’s official acts to prove knowledge or show intent in prosecuting private offences.
Despite the broad sweep of the judgment regarding immunity, there are pressing questions on whether Trump’s own conduct regarding claims of election subversion would fall within the ambit of the ruling. The multiple lawsuits filed challenging the 2020 election result were peppered with admissions on his part that he was doing so in the personal capacity of a candidate rather than that of an office holder performing official functions. Since then, he has had a change of heart, taking the rather primitive view articulated by that other advocate of an imperial executive, President Richard Nixon, who claimed that, “When the president does it, that means that it is not illegal.”
The Supreme Court has remanded the questions on whether absolute immunity applies to such acts as pressuring state election officials and conduct around the events of January 6 to the lower courts. But the consequences of the decision have been immediate in the context of the hush money case, for which Trump was found guilty of 34 felony counts of falsifying business records. His lawyers have already asked that the July 11 sentencing be delayed while also applying to set aside the conviction. Thus, do shadowy motives, personal conduct and the official blur.
Much ink, resources and litigation, is bound to be expended over the next few years over what falls within official, as opposed to unofficial acts, that attach to the office of the US president. Along the way, a few laws may well be broken. With a delicious sense of irony, the Supreme Court ruling will also shield President Joe Biden from vengeful prosecutions planned by Trump and his courtiers. The law can, every so often, be fantastically double-edged.
Like what we do at The AIMN?
You’ll like it even more knowing that your donation will help us to keep up the good fight.
Chuck in a few bucks and see just how far it goes!
Your contribution to help with the running costs of this site will be gratefully accepted.
You can donate through PayPal or credit card via the button below, or donate via bank transfer: BSB: 062500; A/c no: 10495969
13 comments
Login here Register here-
John C -
Phil Pryor -
Bert -
Cool Pete -
New England Cocky -
wam -
Zathras -
Frank Sterle Jr. -
Frank Sterle Jr. -
Ankisip -
GL -
Clakka -
GL
Return to home pageShame! Shame! Shame! America. Wake up!!
Each day that passes your political and legal systems seem to become more of a joke. How anybody can take your policies and ridiculous decisions seriously beggars belief. Why any other country wants to be your allies also beggars belief. Why thousands of migrants want to enter the ‘Divided States of Anarchy’ beggars belief.
If the convicted felon is elected I predict a mass exodus of decent Americans moving to other countries to avoid the looming chaos.
The shouldbeclever Supreme Court of the USA has been bought, stacked, coddled, is underqualified for this level, is compliant to evil repressive conservatism and has betrayed its nation and all of us. This court has just proven George III to be correct, and so, the rebellion will be reversed, all colonies will revert, all assets returned to the U K government and its monarchy and compensation will be negotiated. Charles I, Louis XVI, Nicholas II, will all receive humble apologies, with grovellig to suit. And Trump can boldly wear some Adolfian gear, get a big trained S S personal guard, deal with enemies, settle scores, all so nice.
Rubbery definitions for official or unofficial acts, an absence of clear definition of core constitutional powers has meant that the presidential power is ambiguous to the point of Nixon’s definition of legality…. when the President…. etc.
I
The undemocratic nature of American politics is on show here, A two party system where the voice of the people is over-ridden for partisan powerplays.
Jesus Christ! Subverting an election result is NOT a president acting in accordance with their duties! And the only reason trump was acquitted was because cowardly Republicans protected the bastard!
The recent decision by the US Supreme Court made the Roe v Wade drama a kindergarten picnic.
This decision is arguably the worst political decision since the Reichstag fire in Berlin 1933 that ultimately led to WWII as a self-absorbed FRWNJ was encouraged to take on the world by Germany’s heavy industrial interests, against a sensible analysis of comparative economic power.
Doubtless Adolf Trumpery will exploit every opportunity his purchase of the last four Supreme Court Justices made possible to settle personal scores and extract co-operation and/or concessions from perceived personal enemies.
As a simpleton it seems that the supreme court has given trump the equivalent of our parliamentary privilege for his acts as president. ps wow, NEC are comparing trump’s freedom to the confinement multi-millions of women??
The question remains – why would you want immunity from criminal prosecution unless you have actually committed a crime or intend to in the future?
The SCOTUS ruling split along ideological/political lines, 6-3. Still, it’s not the first, and likely not the last, instance of Western judicial activism. [BTW, many Americans feel that the original Roe V. Wade ruling was itself judicial activism.]
In the early 1990s, the Supreme Court of Canada’s judges apparently mixed their personal ideology with a verdict on a gender-political issue that split along gender lines.
The case involved a complaint filed by some prisoners at a male-inmate facility regarding the institution’s allowance of female guards to invade the male inmates’ privacy; this, while female-inmate facilities disallowed male guards from invading female inmates’ privacy.
It was a no-brainer double-standard that commentators had stated would likely not be allowed to stand — yet it did, thanks to the five female judges outweighing the four male justices!
The reasoning behind that 5-4 judgment was essentially that, disallowing female guards in the male-inmate facilities would hinder employment opportunities for female guards in a male-dominated profession.
It was a disgraceful ideological ruling, one that seriously compromised what should’ve been a case of a blatant double-standard injustice for the male-inmate plaintiffs requiring immediate rectification. One metro-daily newspaper’s editorial cartoon even mocked the court for its decision.
[Cont.] As for the January 6 riot/insurrection, I find it very doubtful there are many people out there gullible enough to genuinely believe Donald Trump was somehow cheated out of an election win. Most of the Capitol Hill rioters likely maintain(ed) that line as an excuse for their attempt to overturn Biden’s electoral win — or at least make it as unpleasant as possible, as witnessed that day.
Long before the last presidential-election day, Trump was saying he may not respect a Biden win, as though preparing his voter base for his inevitable refusal to leave office, whatever the vote-count results may be.
The rioters and Trump may simply have been enraged enough at his defeat by the supposedly ‘socialist’ Biden (which he is not) that they were now going to go the immoral route.
Or they may have believed he has to remain in office for some perceived greater good (e.g., to ‘save the nation’, etcetera), regardless of Trump’s democratically-decided election loss. … The ends justify the means.
Meanwhile, there could have been consequential voter fraud committed in both the 2020 and 2016 presidential elections — in Trump’s favor. The actual hard proof? Basically the same as Trump’s: Nada.
Some people, likely Democrat voters, simply find it unfathomable that so many Americans had voted for him both times — and especially in 2020 after experiencing his first-term mayhem.
They have no real evidence to back up their claim, except for the fact that Hilary had lost in 2016, with Donald garnering as much as 70 million or so votes — results they find possible only through consequential electoral fraud committed in Trump’s favor. It’s absurd, but then that’s the point, isn’t it? … That, and to never underestimate the poor-loser emotional mindset.
I hope this link can be opened
This should scare the population of the US and a large chunk of the rest of the world: It’s basically a “Bend the knee or else!” message from a bunch of fanatics.
https://thehill.com/homenews/campaign/4753439-heritage-leader-second-american-revolution/
America in its entirety is absurd. It psychotically cycles internally through aspiring to supremacy and replacement through bloodthirsty anarchy and revolution – wreck and repeat, always bypassing intellect, empathy and negotiation. Exemplified by their horrendous national anthem, The Star Spangled Banner, all in the name of their corrupted invented god(s).
Such a confused egg & spoon cum sack race, champing for the starting gun, seeking to get their mitts on a trophy and fame. So full of blithe competitiveness, that fairness ends with a circuit of hate and vengeance.
With Trumpery talking the talk, that the SCOTUS ‘immunity’ decision was split along ideological and gender lines is no surprise. It merely embeds the usual bypasses, this time, the legislature, Congress, and leaves the vagaries to the lower courts so that they must circle back to SCOTUS meaning it remains in a mutual dependency with the Pres as impeccable King. Only to be routed by bloodthirsty anarchy and revolution – their intractable death cult.
So what of the hope of fairness prevailing this time? Yeesh, not likely until they obliterate themselves, and even then, they couldn’t possibly know.
I wonder what the odds are, if the Orange Mad Man gets in, that one of the first things he does is pardon himself.