Government Motion on Immunity is a Test of SCOTUS Legitimacy
Originally published 10/5/24 at DavidNewhoff.com
Ever since the Supreme Court handed down the “immunity” decision in U.S. v. Trump on July 1, many Americans are anxious about what that decision leaves open for interpretation. Specifically, the “absolute immunity” doctrine introduced (many of us would say invented) by the Court now requires that the indictments against Trump in the conspiracy to overturn the results of the 2020 election be subjected to a two-step test. Step one is for the government to show that none of the triable conduct that Trump directed or engaged in constitutes an “official” act and is, therefore, not covered by “absolute immunity.” Step two, if the courts find that any of the triable conduct should be accorded “presumptive immunity,” the government rebuts that immunity under a proper reading of the SCOTUS opinion.
On October 2, the government filed its 165-page Motion for Immunity Determinations. To any common-sense reader, it is an infuriating document—both because it details egregious conduct by Trump and his co-conspirators, and because none of that conduct could plausibly be considered “official” solely on the basis that it was carried out by a sitting President. Nevertheless, the Supreme Court has set a bar, unprecedented in our history, which it must now clearly define in response to this motion.
Adding to the many reasons Trump should not become President again, it is vital that the Court have the opportunity to rule in this matter, which goes to the heart of whether the U.S. remains a nation of laws. The Court will either validate the majority’s claim to have written a standard for the Office, or it will justify our worst fears that the majority is corrupt to the point of illegitimacy.
No Basis for Finding “Official” Acts
As a threshold matter, campaign activity (typically legal) is held to be private conduct, even by an incumbent office holder. Statute, case law, and common sense all distinguish between the private effort to attain office from the official conduct necessary to the duties of the office. Indeed, the failure to make this distinction (i.e., believing that the man and the office are one) lies at the heart of all authoritarian regimes in violent opposition to American principles. As the government’s motion presents in excruciating detail, if ordinary campaigns are private acts, then it cannot be the view of the Court that illegal efforts to retain office are held to be “official” solely on the basis that the candidate happens to be the incumbent.
More specifically, under a sound reading of the SCOTUS opinion, the government argues that even if the courts were to afford “presumptive immunity” to any of the triable issues of fact, it rebuts that immunity by demonstrating that “applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’” That is truly the whole ball game. Either the Court wrote an opinion for the Office, as the majority insists, or it wrote an opinion which describes the Court’s own illegitimacy as arbiter of the Constitution. If we cannot distinguish between the private (let alone illegal) conduct of the office seeker from the Office itself, then we no longer comprehend the American model and might as well cede the country to that messianic madness which animates so many of Trump’s supporters.
Reviewing the details of the conspiracy to overturn the 2020 result in context to the question how any of the conduct could be held “official,” I was nagged by the enraging thought that the closest thing to an “official” act was gross dereliction of duty. Leading up to, and especially on, January 6, Trump and his co-conspirators evaded core obligations of any outgoing President, once the campaign is truly over. Indeed, the worst crimes occurred well after Trump and his co-conspirators had substantial and corroborating evidence in hand to disprove any allegations of outcome-determinative election fraud. Consequently, all activity which contradicted the findings of the courts, state officials, the advice of counsel, the DOJ, and, ultimately, the Vice President can only be considered “private” conduct in furtherance of Trump’s own interests rather than the business of the nation. Trump chose dereliction of the duty to facilitate an amicable and smooth transition to the President-Elect. That transition, long held to be more than symbolic, is properly viewed as a matter of national security, and as Commander in Chief, Trump’s most “official” act during that period was to make the U.S. vulnerable to enemies both foreign and domestic.
Further, the lame-duck status of a President during the period at issue must militate against even the most generous application of “presumptive immunity.” An outgoing President between November and January is a paradigm of the duality between private citizen and office holder. He is literally in transition—one hand on the tiller of government, the other already drafting a memoir or planning a library or foundation. At least this was the norm until Donald Trump. By any reasonable interpretation of Trump’s conduct during that period, even if every effort to retain office had been legal, he was principally acting as citizen Trump, arguably laying the groundwork for Campaign 2024. Indeed, promoting unfounded allegations of a “broken” election system remains central to that campaign—a fraud exposed by its own hypocrisy that the system is only “broken” if he loses.
It is not the job of the Court to explain or remedy whatever forces cause millions of Americans to believe Trump’s lies. As noted in my post about the immunity decision, there is no framework that can fully guard against democracy itself, no matter how irrational the will of the people might become. Nevertheless, if there is to be a post-Trump United States that will not become even more untethered from the rule of law, the Court must accept the soundness of the government’s reasoning in this case. If not, we are truly at sea without compass or even a working tiller.
Are We a Nation of Laws?
This week, in sentencing former County Clerk Tina Peters for her conduct in election tampering, Judge Matthew Barrett, presiding over a mere Colorado State Court, told her, “You are no hero, you abused your position, and you are a charlatan, who used and is still using your prior position in office to peddle a snake oil that’s been proven to be junk time and time again…Your position does not provide you with a means by which to do your own investigation, to not listen to the judiciary, to not listen to the executives higher than you, to not listen to the legislature, who sets the law as it may be. This is nonsense…Your lies are well documented, and these convictions are serious. I’m convinced you’d do it all over again if you could.”
Peters was sentenced to a total of nine years’ incarceration due to the nature of the harm she caused the state and the violation of her oath to the Constitution. I am far from the only observer to note that Judge Barrett’s condemnations apply with equal relevance and greater force to a former President of the United States, who is only peddling the same snake oil, but is the wholesale supplier of snake oil to individuals like Peters. After all, who receives the harshest convictions—the drug dealer, or the drug kingpin? If the Supreme Court can find a different rationale in this case to immunize any President against prosecution for related but worse conduct than that of Tina Peters, such logical contortions would be evidence of at least intellectual, if not literal, corruption.