American patriot Thomas Paine wrote these words in Common Sense in 1776. Three hundred and forty eight years later, on July 1, 2024, Chief Justice John Roberts and his five black robed and black hearted assassins committed regicide in broad daylight.
It was as though the Mara A Lago version of Henry II uttered the words “will nobody rid me of this meddlesome ‘law?’” Six hands were immediately raised.
When the world woke up on July 1, the United States had a president. By the time we all went to bed, we had a new King.
King Donald I, who if history is fair will forever be labeled “The Usurper.”
Indeed, the barbarians are no longer at the gate. They’ve crashed through it, leaving it in smithereens.
How bad is this decision? If it had been rendered in 1974, Nixon would not have been forced to resign for his various abuses of power. Indeed, he wouldn’t have needed a pardon. The Court would have ratified Nixon’s statement to David Frost, that when a president acts (as he did in Watergate) it’s not illegal.
Somewhere, Nixon’s ghost must be satisfied. On the other hand, to paraphrase Holden Caulfield in Salinger’s Catcher in the Rye, if the Constitution’s framers saw what the Court did to our constitution, they’d puke.
There’s lots to unpack in this decision, something I won’t do now. There are too many moving parts to it. Too many convoluted assertions. Too many fractured historical precedents that have virtually no coherent meaning.
The Court uses these fractured precedents to serve as fig leaves to disguise its intent. The Court seems to heavily lean lean on the case of Nixon v. Fitzgerald, a civil action about the alleged wrongful employment discharge of Mr. Fitzgerald. So at odds with and no relation to the criminal action, the use of this case was more fiction than on-point precedent.
I thought the use of Hamilton’s Federalist 70 employed by the Court to justify a “vigorous” and “energetic” presidency was especially cute. The cited work originally written to explain and protect the Executive was now being weaponized to confer unimagined immunity for the misuses of the powers of the presidency.
The Court worried that if a president was inhibited by the threat of prosecution he’d be less likely to make the tough decisions and decisively act. The Court overlooks that this threat of criminal liability serves to prevent a duly elected president from acting as a despot on the order of Putin in Russia or Orbon in Hungary.
But maybe that’s the point.
The Court announced that the president is completely immune from criminal liability for the exercise of his core powers. Those powers in the outer limits of those core constitutional and statutory powers are presumed to be immune from prosecution.
As if to pay homage to what previously was thought to be the rule of law, there is no immunity for unofficially presidential actions.
The Court doesn’t tell us how we are to determine core powers from the outer limits to those powers from unofficial powers. Going forward the Court may well fall back on the previously noted Nixon axiom.
In the end, on these questions a court might revert to the tried and true analytic construct of KISS.
But to me the Rosetta Stone unlocking the full intent of any determination as to whether a president acted outside of his core and outer powers prohibits an examination of the motive of those acts. From the Syllabus: “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.” [Italics mine]
Let’s play this out: during the period between the November 2020 election and the certification of that election by the Congress in January 6, 2021 a plan was hatched to appoint assistant Attorney General Jeffrey Clark Acting Attorney General so that he could then contact several states (e.g., Arizona, Georgia) to recall it’s slate of electors in order to “investigate” the existence of fraud and appoint new electors. That there actually no fraud seemed to be of little consequence to this plan.
The only reason Clark was not appointed was the threat of mass DOJ resignations. This is all sworn testimony. Was Trump’s consideration of this scheme a core presidential power? In my view, absolutely. Article II section 2 gives the president the power to appoint “advisors” to the Executive branch upon whom he could rely.
Was this a presidential act absolutely immune from legal examination? According to Roberts and the sycophants, yes. Based on sworn testimony, this scheme was not to uncover acts of fraud but to throw out Biden electors and replace them with Trump electors.
But how about Trump’s rally on January 6, exhorting the masses to march on the Capitol to “fight like hell” to keep from losing their country? On December 13, 2020, Trump exhorted his supporters to come to the Capitol claiming it will be “wild.”
And come they did. In addition to Trump’s comments, we had “America’s Mayor” Rudy Giuliani inform the crowd that going to the Capitol would result in “trial by combat.” There are other comments but we get the gist of what they were trying to do.
By the way, rallies like this do not contain sporadic, spur of the moment rhetoric. They are well coordinated and structured and orchestrated. These are not organic events.
While speaking to the public is not a “core” power of the president, it is one he is entitled and arguably required to do. A president must be allowed to address his citizens to inform them of events that may impact their lives. This is at least an outer limit of those core powers.
Using Trump as the basis of analysis, are any of these acts prosecutable? I would argue that the Clark scheme is protected under Article II and thus it’s not. Was that scheme, at minimum, smarmy? Yup. Was it illegal? Facially no. According to the Court, it was facially within the president’s core powers. In short, this matter was immediately immune from revue.
How about the January 6 rally? Because this rally, communicating with the public regarding an important public issue (the certification of election results) was at least an “outer perimeter” of the president’s powers, it is presumed to be immune.
The Rosetta Stone of the Court’s decision is that the a prosecutor is not permitted to explore the motives behind these core or outer perimeter acts.
When I taught history many years ago, I’d try to impress upon my students that the most important question is not what happened, but why something happened. What was the motive for a group of men to gather together to write the Declaration of Independence? How about the Civil War? The fight against fascism in the 1940s? The women’s suffragette movement? The conquest of the continent and the introduction of slavery to North America?
These events and so many more that are rendered to mere rote memorization neither informs nor educates. Left by themselves they are no more than a list of rando, unrelated events which have no meaning to our current lives. What informs and gives them life is exploring the “why” something happened. Understanding the motive for actions is vital to true higher order understanding that can be used in the future.
In a criminal prosecution it is vital element to any crime that the accused’s men’s rea (i.e., criminal mind/intent) be proved beyond a reasonable doubt. It’s nearly impossible to establish the basis of a criminal mind without at least brushing past the issue of motive.
Motive is the ultimate why.
But relative to this Court’s Trump opinion, a prosecutor is prohibited from exploring this question. Arguably Trump’s elevation of Clark was a part of an illegal scheme to steal the 2020 election, but because Trump’s conversations, directly or indirectly, with Clark fall under Trump’s core powers, he enjoys complete immunity from investigation or prosecution.
Game over.
The rally on January 6 is a little different but because because it falls within the outer perimeter of the president’s powers it is presumed to be immune for from prosecution. The that presumption can be pierced through an investigation to determine whether a president acted in his official capacity or as a candidate who just lost an election.
But how do we separate the president from the candidate, or the communication of legitimate public information of vital importance, or if he was acting in his unprotected political capacities?
In other words, how do we establish mens rea without investigation the motive behind a person’s actions? According to the majority of the the Supremes, you don’t. A prosecutor is prevented from investigating motives in areas of absolute and presumptive immunity.
Those who read this blog well know that I find the current iteration of this Court to be an abomination. I have tried to do so without writing a law review article – dry, dull, and boring. I’m not an academic, I’m a retired lawyer with years of experience.
My job is not to establish higher order truth in the legal academy, but rather to inform the public of what I believe are the legal travesties committed by this Court against the the continuity of our evolved body of law that supports a pluralist democracy.
I have taken pains not to pull apart Trump v. United States. There will be time to do that. For now it’s sufficient to say that more than any other branch of government, this Court for nearly the past twenty years has transformed American society, law and politics into something unrecognizable.
In 1973, as the Watergate scandal really began to percolate, historian Arthur M. Schlesinger, Jr. wrote The Imperial Presidency. The central tenet of the book was that because the presidency had over time accrued so much power at the expense of the other two branches of government. And this concentration of power posed a lethal threat to health of our democracy.
Schlesinger’s warning about this accrual of power was brought into stark relief at noon on July 1.
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