In the epic constitutional drama pitting the Supreme Court and Donald Trump on the national stage, there were two missing factors and their absence strongly influenced the outcome.
First was the Court’s insensitivity to the corrosive cynicism that produced this historic drama in the first place.
Second was the Court’s refusal to acknowledge the complete lack of good faith on Trump’s part throughout this constitutional saga.
What is abundantly clear, as the nation absorbs what it means that Presidents – past, present and future – are now constitutionally immune to almost any real legal accountability, is that the system of law sometimes is just too self-absorbed and too structurally rigid to take into account serious failings in human character.
Law, in short, has left the nation feebly groping for an incredibly elusive political remedy. This outcome was necessary, the Court concluded, to avoid “enfeebling” Presidents in the exercise of duties that “are of unrivaled gravity and breadth.”
Law’s guardrails have failed, perhaps catastrophically. America has a stark new reminder that law can be morally obtuse and politically naïve, especially when dealing with a public figure whose only approach to the law is disdain. Lawyers and judges often say that “hard cases make bad law.” But, at its heart, the case of Trump v. United States (an especially apt title) tells America that a legal case insincerely begun and audaciously manipulated can make law that is very bad, indeed.
There is no need to blame Trump’s lawyers. As their client, the choices made in this drama were his. No one knows what advice they gave him, but the underlying strategy precisely fitted Trump’s brand.
The strategy rewarded by the Supreme Court Monday morning may be said to have had many beginnings. But as a political event wrapped up in a legal case, it began on November 15, 2022, in the now-infamous surroundings of Trump’s Mar-a-Lago private club in Florida. That was the day that Trump, in an hour-long speech, announced that he would run for election again, in 2024.
November 15 was less than a month after the special “January 6 Committee” in Congress had futilely ordered Trump to appear and testify about the attack on the U.S. Capitol on January 6, 2021. He refused to comply. The committee had issued its subpoena after completing nine nationally-televised hearings detailing every harrowing fact of that attack.
From those hearings, Trump knew — to a certainty — that he was in serious legal trouble. Just three days after Trump announced his candidacy for 2024, Special Prosecutor Jack Smith was appointed to pursue potential criminal charges against Trump.
At least from that day, if not on November 15 at Mar-a-Lago, it became Trump’s strategy to use his presidential campaign as a basis for claiming that, if he were prosecuted, he would resist it as a politically-inspired “witch hunt” to deny him election. In every court filing, in every hearing in court, that phrase — “election interference” — would be repeated.
Among other potential advantages, it would exploit the courts’ known queasiness about disrupting election campaigns as they are occurring.
There is very little, if any, evidence that Trump actually wanted to be President again, or that he had any well-defined policy agenda to pursue. With keeping his personal freedom as the ultimate prize, winning the White House might be the only guarantee. With that would come the pardon power, so expansive, he believed, that it could be granted to himself.
Thus, this campaign at its core was to be built on a cynical legal strategy. The lawyers that he hired from then on pursued, ultimately with remarkable success, a legal campaign to delay every proceeding in any criminal case anywhere. The legal team drew widespread criticism as court filings, one after the other, relied upon novel, sometimes fanciful, legal theories.
In the end, though, the broadest of those claims were mostly validated by the Supreme Court’s majority. Only the most frivolous of the arguments failed – the claim that, since he was not thrown out of office by congressional impeachment, he could not be prosecuted. That, it turned out, was hardly a crippling blow to the strategy.
What is most obvious about Chief Justice John G. Roberts’ majority opinion Monday is that it heralds an American Presidency that is even greater in scope and power than historian Arthur M. Schlesinger, Jr., thought when he wrote the book The Imperial Presidency, published in 1973. The immunity of Presidents to criminal prosecution bestowed by the new ruling may rival that of all but the most imperious ancient monarchs.
From this point on in the history of this drama (which will continue, for months and maybe for years), the imagination of criminal prosecutors and trial and appellate judges will have to be truly inventive to salvage even a few of the 88 criminal charges – 34 of which had led to guilty verdicts, with great uncertainty of whether there will ever be a trial on the other 54 counts.
Even the guilty verdicts in the New York state case may be erased; Trump’s legal team has already begun the process of trying to nullify those convictions, relying upon the Court’s new decision. The Trump team’s interpretation of that decision, though very ambitious, may fairly reflect what the ruling in reality does mean.
There are at least four parts of what the Court decided that will complicate the task that lower courts will now face as they decide what, if any, legal threat remains for Trump.
First of those parts is the ruling that, for anything that Trump is accused of doing that can be labeled an official duty of the Presidency (a sweep that is spectacularly broad, in the Court’s definition), there will be absolute immunity. Such acts can never be charged and can never be questioned in court.
Roberts found that notion in the Constitution’s Article II, which created the Presidency. In Roberts’ rendition of the idea, the President must be allowed to pursue powers of immense breadth without the slightest hindrance from the other two branches of the government. Embodying the entire Executive Branch within the President’s own person, the Chief Executive must have free rein to function boldly and effectively, as the opinion interpreted Article II.
Second is the part of the ruling that, even though a President’s official actions may be criminal under some law written for everybody else, there can be no prosecution because of absolute immunity.
Third is the part of the ruling that, even though it might be clear that a President acted with a specific intent to violate a law, evidence of that is barred because no other part of government is allowed to question the “motive” that led a President to act.
Those three parts of the decision had the full support of all six of the Court’s conservative Justices.
There was a fourth part of the decision, and the ruling on this part divided the Court 5-to-4, with conservative Justice Amy Coney Barrett refusing to go along with it, saying that she agreed on this point with the dissents by the Court’s three liberal Justices.
In this part of the ruling, the majority declared that, even though a President can be prosecuted for crimes involving private acts, no evidence can be used to help prove guilt for those crimes if that evidence could be traced to or linked with any official action.
That will complicate seriously the task of prosecutors in trying to prove illegal intent or purpose – a requirement that must be met for a verdict of guilty on any criminal charge – if a private act being challenged was done by a President or former President. No other accused person in America can the benefit from that.
Applying those four mandates, the lower courts that now must carry out Monday’s decision will face a task of potentially wide complexity, especially since the Roberts opinion offers only a fleeting, incomplete discussion of what kind of presidential actions would be “official.” And that huge task must be completed before they could start any trial on charges that remained.
But what of the Court majority’s seeming indifference to Trump’s cynicism and his bad faith? The Court might have judged the constitutional prerogatives of a sitting President differently from those of a former President – particularly one who is, at most, a political candidate running primarily upon the “big lie” that politics is a rigged exercise with value only as a way to avoid going to jail.
Instead, the Court conferred upon Trump all of the grandeur and dignity of the office of the Presidency, unsullied by 88 felony charges.
Having earlier in its term ruled that the states that are constitutionally empowered to run elections, even for the Presidency, had no power to exclude Trump from the ballot for his role in the Capitol uprising in 2021, the Court closed the term by conferring legitimacy upon this lawsuit in the guise of a political campaign.
Courts, of course, are not allowed to judge the political strategies of candidates, even if a strategy means that the candidacy’s only platform is a lawsuit, a brazen dare of the courts to hold that politician to account. The courts, properly, leave those kinds of political judgments to the voters.
What is different about Trump’s case is that the legal strategy had made the candidacy, from the start, a sham. During the primary elections, Trump may have gone through the rituals of seeking and gathering votes from Republicans, but the underlying pursuit was the frustration of any criminal complaint against him, in federal or state court.
The Chief Justice’s opinion includes a bland recital of the evidence that Prosecutor Jack Smith gathered against Trump for the events leading up to and following the January 6 assault in Washington. And there is, in those 43 pages, not a hint of the horror that seized the nation on that day in early 2021.
In fact, near the end of the opinion, Roberts refers to the prosecution in the Trump case as one based merely upon “transient results” and “present exigencies” – odd phrases to use in describing the first case in American history charging a President with crime, a crime pursued with the objective of staying in office despite having lost in the vote of the people.
There is a great deal of talk these days, within and outside of legal circles, of the need to preserve and protect “the rule of law.” But, if law is to function properly, and if it is to deserve respect, at least some amount or good faith to stay within legal bounds is essential.
The case of Trump v. United States, it now is plain, has thrown over the shoulders of Donald Trump the mantle of constitutional regularity and dignity. This gift to his political campaign could be the most valuable it has received since that campaign began about 20 months ago, fittingly in the crime scene that is Mar-a-Lago.
