I've been going back and forth the last two days as to how panicked I think we should be about the Supreme Court's ruling in the Trump immunity case. On the one hand, I'm frankly not surprised by the outcome. It was clear from the oral arguments that the justices were bound to exempt some presidential activities from criminal liability—and, in truth, I'm not sure they were wrong to do so. I see the strength of the argument that an executive official should not face criminal prosecution for actions they undertook within the scope of their role as a legitimate policymaker—the remedies for such actions, if they prove to be misguided, should be political ones, not criminal prosecution.
The Court therefore had to draw a line somewhere between what constitutes a president's official conduct as the holder of that office, and what constitutes a private criminal action that they undertook while they happened to be president. I'm not sure the Court's conservative majority drew that line in the right place—probably they erred on the side of executive power. But I'm relieved that they drew the line at all. The Court stopped short of declaring the total immunity that Trump asked for; they left the door open to the possibility that a sitting president could be prosecuted for actions they undertook in office, so long as they were acting in a way that could not reasonably be described as part of their official duties.
But then, on the other hand, I read how the conservative majority specifically exempted the president's discussions with Justice Department attorneys from any potential criminal liability. I have no idea why they needed to do that. Surely there should be something like a crime-fraud exception for the immunity granted to such conversations. Here as elsewhere, it should be possible for courts to find that some conversations with executive officials are not real policymaking, and are instead a criminal conspiracy to advance the president's private interests, if that's what the facts show. I don't understand why the Court would categorically exempt this conduct alone, while leaving the door open elsewhere.
Their choice of phrasing in this regard was also especially eerie: the President, they reportedly wrote, has "exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials." Trump has already made clear his ambition to eviscerate the independence of the Justice Department and to use it to seek retribution against his political opponents. The Court's decision to expressly exempt any such actions he takes in this regard from criminal scrutiny reads as if they were effectively giving him a green light to do so. What makes this doubly ironic was that the Court's whole opinion was cloaked in the rationale of allegedly trying to prevent politically-motivated prosecutions.
So, should we panic? Perhaps it waits to be seen—much of this will come down to how the lower courts apply the justices' new line-drawing test.
No matter what we think of the Court's decision, however, one thing still bothers me far more than the rule they ultimately articulated: namely, their strange insistence on looking only to future, hypothetical threats to the democratic order—rather than the real-life here-and-now threat to that order, which is staring them in the face. Justice Alito, for one, notoriously opined during oral argument that criminal liability for presidential actions could prompt future office-holders to stage a coup to hang onto power. He made no mention of the fact, in pondering this hypothetical, that the previous president is credibly accused of doing exactly that. Indeed, that's why they were there—that's what the whole case was about.
The other conservative justices seemed equally unwilling to address the case actually before them—which concerns the actions of a sitting president who really did conspire to unlawfully cling to power after the end of his term. Justice Gorsuch, for instance, waved aside questions about the Trump case, saying "I appreciate that [in response to counsel's point about the matter at hand], but you also appreciate that we're writing a rule for the ages." Justice Kavanaugh made sure to reiterate the same point: "like Justice Gorsuch, I'm not focused on the here and now of this case. I'm very concerned about the future." All, in short, seemed to express the same eerie unconcern with the present concrete instance.
What makes these lines so strangely out-of-touch and disturbingly oblivious is their blithe assurance that there will be a "future" in which to apply this rule—that there will be "ages" of democratic governance in which to worry about this problem. They seem to think they needed to write a rule that would somehow prevent the deterioration of our republican institutions of governance fifty years from now—if some theoretical unscrupulous actor happened to gain the office of the presidency. They refused to even contemplate the possibility that that moment has already arrived—that that's why they were there in the courtroom, hearing this case. The time for them to step up to defend our institutions is now, not someday!
In this regard, the justices were rather like those dull Hollywood superhero movies that always save their most interesting ideas for the post-credit sequence. "I know, we had to bore you with this first film in the series," they always seem to be saying. "That's because we had to do the origin story and get all the exposition out of the way. Plus, we had to start with a minor villain. But—next film, hoo boy! That's when it's really going to get exciting." But then, because the first film was so boring, there is no next film. The studio never green-lights the promised sequel, because this one did so poorly. They realize too late that they should have just used their best idea the first time around. That was their chance, and they blew it.
The justices seemed to feel, like the screenwriters, that they would have endless future chances. They have to write a rule for all the future elections, they told the lawyers—as if those elections were assured—as if the entire reason they were hearing this case were not precisely because a sitting president tried to subvert the outcome of an election. "We have to think about elections fifty years from now," they said. But—to quote D.H. Lawrence—"Why should the deluge wait while these young gentry go on eating good dinners for fifty more long years?" "We have to write a rule for the future," the justices say. But what makes them so damn cocksure there will be a future—if they don't deal with the threat right in front of them.
As D.H. Lawrence's poem—about the "Latter-Day Sinners"—continues: "perhaps, my dears,/ nihil will come along and hit you on the head."
The justices seem to treat it as inevitable that there will be endless chances to preserve democracy—someday. They can still treat it as an intriguing speculation to wonder what would happen if there were a corrupt president who tried to subvert democracy. Obviously, such a thing is not actually happening. Such things do not happen in our lifetimes, in the real world—not in this nation, at any rate. "[I]t is a bit, like the rising of the sun,/ For our country to prosper; who can prevail against us?" as Edna St. Vincent Millay once mocked this complacency. She then aptly concluded by observing that meanwhile, "hall upon hall/The moles have built their palace beneath us, we have not far to fall."
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