by Richard Cameron

Reading The Tea Leaves In The Supreme Court “Absolute Immunity” Hearing & A Simple Solution

Some themes that surfaced during the Supreme Court hearings on the question of whether Donald Trump is entitled to “absolute immunity” during his term in the Oval Office, sparked interest and deeper reflection on my part.

The main theme that Trump’s attorneys were attempting to get buy in from the justices, was the argument – Trump’s own argument, that absent the cloak of immunity, Trump or any President who may hold that office in the future, would be exposed to a myriad of legal challenges, up to and including criminal charges from an assortment of ostensibly hostile actors and parties. A lot of ground was covered, including notably, the obvious and important question posed by Justice Ketanji Brown Jackson, “If there’s no threat of criminal prosecution, what prevents the president from just doing whatever he wants?”

As I heard D. John Sauer, Trump’s legal representative respond to questions from various members of the court, my mind was organizing my own counter-arguments to the Trump claims. To hear Sauer outline Trump’s position, one quickly discerns that the notion that Trump, or a president with similar inclinations, absent full bodied, all encompassing indulgence and indemnification of his acts, would be in something of a strait jacket, unable to perform the duties of the office, for fear of immediate or future consequences, is overwrought and exaggerated in the extreme.

Justice Samuel Alito was of like mind, digging into the remote past, asking Special Counsel Jack Smith’s representative at the court, Michael Dreeben, about whether a constriction of immunity would have jeopardized F.D.R., in ordering American citizens of Japanese ancestry to be removed to internment camps during World War II.

Among the most intriguing questioning came from the most recent Trump appointment to the court, Justice Amy Coney Barrett, who ran down a series of  allegations from the indictment and asked Sauer to respond whether Trump’s actions in each instance were private or official.  Intriguing not so much that such questioning was unexpected, but because of who was posing the line of questioning – a justice who was originally thought to be unequivocally aligned with the conservative side of the court.  

There have been other hints of a sense that she is beginning, perhaps, to stake out a more independent role than that which was forecast by court watchers. Sauer himself, might not have expected the line of interrogatives that Barrett aimed his direction.  “What if the criminal conduct isn’t discovered until after the president is out of office, so there was no opportunity for impeachment?”, Barrett queried.

Sauer responded that the framers of the Constitution “assumed the risk of under enforcement” in the contours of the prerogatives of the office of the presidency. He quoted the late Justice Scalia’s comments in another case – “the separation of powers prevents us from righting every wrong, but it does so that we do not lose liberty.” 

That was a disreputable notion on its face, especially in light of the executive office holder and the conduct that is the focus of these hearings. What Trump is charged with, can be factually categorized as an attempt to destroy ‘liberty’ as the reasonable man would define it.

Justice Barrett says no one has ever suggested that the justices would need to be impeached and convicted before they could be prosecuted. Sauer responded that under the Constitution, (according to former Solicitor General, Robert Bork), the sequence is only mandatory as it relates to former presidents.  “He (Bork) said the sequence is mandatory only as to the president. That is DOJ’s view of the original understanding of the impeachment judgment clause, which is exactly our position.”   

Citing Bork is dubious to put it mildly. This was, number one, Bork’s exclusive opinion, not binding to anything and number two –  mentioning Bork in any context, is revealing, given that Bork was on record as opposing the 1964 Civil Rights Act and lamenting the Roe V. Wade decision. The late Senator Ted Kennedy, during hearings on his nomination to the Supreme Court in 1987, remarked:

“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.”

When Mr Dreeben said there was “no perfect system” for handling a president’s culpability, but that the current system would not be improved by Mr Trump’s “radical proposal” Justice Barrett replied: “I agree.”   

Justice Alito tried to paint a picture of an incumbent president who lost a hotly contested election needing immunity in order to prevent prosecution by the winner. That is an incompetent proposition. Of the 40 times in the history of America a transfer of power occurred, 11 of those changings of the guard were from an incumbent to a challenger and not one time prior to 2020, did the incumbent orchestrate a scheme to obstruct the peaceful and orderly transfer of power. 

Alito skeptically asked attorney Michael Dreeben if he was saying that if a president makes a mistake, he’s subject to criminal law just like anyone else. Dreeben corrected Alito, telling him that was not the government’s  position and that a “mistake” would not be grounds for prosecution.  “He’s supposed to be faithful to the laws of the United States and the Constitution … and making a mistake is not what lands you in a criminal prosecution,” Dreeben said 

But in another exchange with Trump’s representative Sauer, Alito commented, “My question is whether the very robust form of immunity you’re advocating is necessary.” This, of course, could have just been an attempt at feigning a certain degree of objectivity. 

Justice Clarence Thomas, who has ordinarily been a predictable defender of Trump’s actions and decisions, still counter-intuitively rejected Trump’s claim of absolute immunity and pointed to the text of the Constitution and how it was understood by the people who ratified it. “The text of the Constitution … does not afford the President absolute immunity,” Thomas wrote in 2020.  Thomas might be casting his mind forward to contemplate a non-Republican chief executive who might find it necessary and expedient to violate established laws and legal norms, relying on the precedent the court could set here.

Justice Elena Kagan said the country’s founders knew how to provide immunity in the Constitution, and they didn’t do so for the president.
“Not so surprising, they were reacting against a monarch who claimed to be above the law,” she said. “Wasn’t the whole point that the president was not a monarch, and the president was not supposed to be above the law?”

Sauer, Trump’s attorney, said charging a president might make that president more hesitant about making consequential decisions. “If a president can be charged, put on trial and imprisoned for his most consequential decisions as soon as he leaves office, that looming threat will distort the president’s decision-making, precisely when bold and fearless action is most needed.”

Sauer told the justices that “without presidential immunity from criminal prosecution, there can be no presidency as we know it.” This is an almost verbatim echo of Trump spokeshole, Steven Cheung’s comments about the appeals court ruling in February, “If immunity is not granted to a president, every future president who leaves office will be immediately indicted by the opposing party. Without complete immunity, a president of the United States would not be able to properly function.”   

Of such contention  Michael Dreeben, commented, “His novel theory would immunize former presidents from criminal liability for bribery, treason, sedition, murder, and, here, conspiring to use fraud to overturn the results of an election and perpetuate himself in power.”  In the hearings in the lower court and the court of appeals, Jack Smith argued correctly that, “The president’s constitutional duty to take care that the laws be faithfully executed does not entail a general right to violate them.”   

The court, instead of resolving the issue it should have left in the hands of the district court and the U.S. Court Of Appeals, heard the case and then kicked the can down the road to next month (May).  

What this hearing came down to, was an unnecessary exercise in what can be classically described as obfuscation and pettifogging. The issue at hand is stark and needed to be resolved in a timely manner. It has not. It was certainly not obligatory to take it up. The lower courts – the district court and the US Court of Appeals for the DC Circuit provided ample reasoning in their rulings that demonstrate that Trump’s claims of immunity with regards to the crimes he’s charged with are specious and without merit.

The court announced a recess on the hearing until early May and even then matters might not be settled, as some observers are seeing the possibility that the court may remit back down to the appeals court. 

While I was hearing some of the justices ruminating about the possibility that a future president would be impeded in their official decisions and actions by a formal limiting of immunity, it occurred to me that there already is an app that is in place and accessible to every occupant of the highest office in the land, to provide guidance as to the legitimacy of their conduct, decisions and undertakings.

It’s called the White House Office Of The General Counsel. The White House legal staff is available to the president at virtually all hours, day and night if the president has some deep concern or question as to legality – or simply wishes to document that he or she made the contact and was subsequently of the understanding that there was a solid legal foundation for proceeding forward with a course of action.

As we learned in the January 6th investigation hearings, Trump’s White House lawyers did in fact warn him that the schemes that Sidney Powell, Rudy Giuliani, John Eastman, Jenna Ellis and others were peddling to him at his invitation, were likely to violate the law. Trump ultimately chose to dismiss their warnings and the consequences he’s facing now, are on him and in no way are a validation of the concept of unlimited or absolute immunity.

Just as a post script to all of yesterday’s news coverage of the hearings, it was amusing to see that various media platforms were all over the map in terms of what the top line takeaway from the hearings was, as illustrated by the following screenshots:

as compared with this from the Associated Press:

and then there was one from PBS, essentially similar to what NPR and the Associated Press concluded:

Even ABC’s national news pundits were in disagreement with that of some of their regional affiliates as to the bottom line of yesterday’s proceedings, with one headline emphasizing that the court seemed inclined toward the immunity arguments of Trump’s representative and other markets summing up just the opposite.  CBS News,  on the other hand, opted to sort of split it down the middle:

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