The Supreme Court, Presidential Immunity, and the Implacable Tide

July 2, 2024

“There is a tide in the affairs of men,” said my last posting, about the presidential debate, quoting Shakespeare. The debate debacle one more episode in what feels like an implacable dark tide, the doing of a perverse God. Sweeping away what America has meant.

Our politics had often before been roiled, most notably in the Civil War era. Yet even then, somehow the nation’s basic civic compact actually held. With indeed a normal presidential election — whose result the loser graciously accepted.

But now that civic compact is broken. In retrospect, the hinge moment may have come in 2016 when Senate Republicans refused their constitutional duty to process a president’s Supreme Court nomination. Thus in effect stealing the seat. They did it again by ramming through a last-minute nomination in 2020.

Thus illegitimately gaining partisan control of the court. Which has produced a string of extremist rulings eviscerating public confidence in the institution. Contributing to a broader collapse of social trust — one more way that dark tide is engulfing us.

So the court has been smashing down the church-state “wall of separation;” crippling federal agencies in their operations; undermining accountability for public corruption; elevating gun rights to a crazy absolutist level; and of course unleashing a whirlwind on abortion. All while flouting fundamental judicial ethics.

And now this ghastly presidential immunity ruling. The very idea seemed preposterous when first broached — and was unanimously swatted down by a federal appeals court. But not only did the Supreme Court nevertheless agree to hear the case, they imposed a stretched-out timetable calculated to give Trump the huge political gift of likely pushing his January 6 insurrection trial past the election. And the ultimate ruling was delayed until the last possible day. (In contrast, they’d been quite speedy in killing efforts to keep Trump off the ballot, as an insurrectionist, pursuant to the 14th Amendment.)

All the Court’s 116 pages of Talmudic legal parsing about presidential immunity seems unnecessary. Nothing in the Constitution suggests any such thing. The idea is devoid of precedent. The only relevant prior case was Nixon’s — where the fact of his pardon by President Ford strongly suggests a general presumption that Nixon was subject to prosecution for crimes while president. Otherwise why pardon him?

But even if a president ought not be punished for actions within his proper responsibilities, that requires no Supreme Court adjudication. It could have merely said that such can be a defense to a criminal prosecution, to be thrashed out before a judge and jury in the course of a trial. That’s what we have courts and trials for. Surely they can distinguish between a presidential action within proper powers, and one outside them — like ordering a political opponent’s assassination. Which Trump’s lawyers actually argued a president could do with impunity.

But instead of the sensible ruling suggested above, the court unnecessarily pronounced a broad (overly broad) doctrine of presidential immunity. Practically deeming the president above the law, saying one can’t be prosecuted for any “official acts” — only for stuff done in their “private capacity.” Quite a limited carve-out.

Worse yet, the Court’s majority, having promulgated a standard, failed to take the next step and apply it to the facts at hand. Maybe because actually exonerating Trump’s conduct would have been too insane even for this tribunal. So instead, they sent the matter back to the lower court for yet more proceedings, before the trial itself could go forward. Further ensuring that it cannot occur before the election — yet another political gift to Trump.

The Court said immunity is necessary for a president to function. Nonsense: presidents functioned just fine for 235 years without anyone ever imagining they had such immunity. What the Court has ruled, literally, is that there’s no such thing as abuse of power.

Justice Sotomayor, dissenting, says this in fact allows a president to order an assassination. Or mount a coup to retain power, as Trump did. The court’s decision would leave him even more unchecked in a second term. It’s a prescription for an unaccountable dictatorship, wholly at odds with rule of law and everything this country stands for. Or used to.

And so the dark tide keeps rolling in. Drowning us.