Shocks to the American Psyche
Originally published 7/7/24 at DavidNewhoff.com
Before I offer some opinions my fellow Democrats may not like, let me affirm the belief that Donald Trump/Trumpism poses an existential threat to the United States. But although that sentiment has been expressed by many qualified and level-headed people across the political spectrum, I suspect we are not psychologically disposed to contemplate what it really means—let alone why it is happening. Memes invoking The Handmaid’s Tale and the Nazi party, while apt in some contexts, are a distraction from the plain fact that we have no idea what follows when the American Republic collapses. And that includes whatever fever dream of a quasi-theocratic utopia is imagined in the “Mandate for Leadership” (aka Project 2025). Chaos is chaos. By definition, it defies prediction. Meanwhile, I believe the rational, patriotic American is suffering two major shocks—one overt and articulated, the other sublimated and, perhaps, more painful.
The first shock comes from accepting the unthinkable—that there are enough voters willing to reelect a man whose CV is a litany of depraved and illegal conduct that should be disqualifying by the light of any tradition in even our most volatile history. The second shock, which became more apparent last week, is the realization that the American system does not include a remedy for the first shock. The apocryphal words “A Republic if you can keep it,” which Franklin never said, convey an uncomfortable truth—that the you in the statement is to be taken literally. Civics lesson 101 that power derives from the people is not poetry but doctrine. And the Framers knew exactly how precarious it would be.
Like it or not, there are limited prophylactic remedies to a criminal attaining high office other than democracy itself. And painful as it is to say this, the Supreme Court’s opinion in Trump v. United States is largely consistent with this fundamental truth. The Framers anticipated a President being prosecuted for crimes after his term of office, and the Court’s opinion does not disturb this principle. Moreover, the fact that Trump appears likely to be reelected and, thereby, avoid standing trial for his crimes is not the fault of this opinion, but the fault of that portion of the electorate willing to return him to the White House. This does not excuse the craven dereliction of duty exhibited by Republicans in the Senate who failed to convict Trump on the second impeachment, but the reason they were craven is that they followed rather than led their constituents. And this is what the Framers feared about democracy.
The word democracy was so often used in a negative light (i.e., as something to be avoided) at the founding period because the architects of the Plan understood both the strength and weakness of power derived from the people. Having just won an unprecedented, unlikely, and largely undisciplined revolution, how could they not be acutely aware of the capacity of the people to tear down a framework so novel as the American Republic? With all due respect to the many legal experts whose opinions forecast imminent disaster following the immunity ruling, the Court’s opinion—answering a question about the presidency, not about a President—does not alter the exigent danger of reelecting Trump. Would that there were such a remedy, but there is not. And indeed, if the decision went the other way, the peril of a second Trump administration would be the same.
Instead of the infamous SEAL Team Six hypothetical, let’s imagine that President Biden is now at liberty to assassinate Trump on a good-faith belief that the latter is a domestic enemy. Biden has ample evidence to support that belief and the authority of the Executive to act, but does he have immunity? Not based on the Court’s opinion he doesn’t. By violating Trump’s Fifth Amendment rights, the assassination would be unconstitutional and, therefore, not an “official act.” At least that is how the reasoning should be applied, but more below.
Of course, what stops President Biden from taking this action is not the question of whether he would face prosecution but rather that he understands his oath to the Constitution and will remain loyal to that oath. This is the same loyalty which prevented Trump’s conspiracy to overthrow the constitutional order in 2020—because a handful of people, including several I do not like politically, did their duty to the nation and have since been excommunicated from the GOP and threatened with violence for their service.
Trump does not care about the Oath of Office, or even understand it, and he has demonstrated that he is willing to violate the Constitution in both spirit and letter. Assuming he goes even further next time—that for instance, he would order the military to kill a political rival, the Court’s decision does not immunize that order. But so what? If the President gives such an order and the military carries it out, the United States is then at the threshold of either a coup d'etat or a civil war, and it no longer matters what the immunity opinion, or indeed any opinion, says about anything. Unless and until the constitutional order is restored, the law is at that moment nothing more than the record of a fallen nation.
Imagine the opinion going the other way and the Court finding that the President has no immunity of any kind. In the context of Trump, or any President with similar ambitions, that outcome would, again, have little impact on either his intent or capacity to end the United States. Again, we need to take the “existential threat” premise literally and remember that we are projecting a future in which law as we know it is meaningless. Alternatively, assuming the Republic will endure another Trump administration, this is the light in which the Court sought to answer the immunity question presented, and it is the light in which it should be read, whether one agrees with the decision or not.
Of course, we want to read the opinion through the lens of its uniqueness. As the Court acknowledges, it has never had to consider the question of immunity for a President’s criminal conduct because no President has ever been indicted on criminal charges until now. This is itself a shock to the psyche which makes any reasonable person scream EXACTLY!! and then turn to the common sense of Justice Sotomayor arguing that a President who does not want to be indicted should avoid breaking the law!
Unfortunately, even this principled appeal to basic decency and loyalty to the oath is no match for damnable democracy. The Court did not rule that Trump absolutely cannot be prosecuted, though one can argue it set too high a bar for prosecutable conduct. Indeed, if Trump loses the election, he will stand trial and, I believe, be convicted on at least some of the charges against him. The question, then, is whether the Court properly framed immunity for the presidency, or whether it invented immunity by “brute force,” as the dissent argues. The validity of the opinions must be considered beyond “the exigencies of the moment,” as the majority correctly states. In other words, is this a proper ruling for the presidency if Trump were not poised to be reelected in November?
I believe the Court goes too far with its judge-made “absolute immunity” doctrine but not with its “presumptive immunity” doctrine. For one thing, as the dissent rightly notes, no immunity doctrine exists in the text of Article II, and the Framers knew how to write an immunity clause, if they had wanted to. The majority finds, however, that absolute immunity lives in the penumbra of the Constitution (specifically in the separation of powers), hypocritically betraying its own rationale for, among other rulings, overturning Roe. Specifically, I agree with the dissent’s criticism that:
…the majority declares that evidence concerning acts for which the President is immune can play no role in any criminal prosecution against him. That holding, which will prevent the Government from using a President’s official acts to prove knowledge or intent in prosecuting private offenses, is nonsensical.
If the majority’s intent was to write an opinion “for the ages,”[1] one which serves the presidency by immunizing the Office against political prosecution, then to the extent the Court should intervene in this regard, its doctrine of “presumptive immunity” is sufficient to that end. The broad holding that lower courts, as finders of fact, would derive tests for separating immunized “official acts” from prosecutable “private acts” comes closer to striking the right balance between safeguarding the nation from tyrants while safeguarding the Office from political abuse of the justice system. Thus, evidence that Trump called Attorney General Barr to direct him to do something illegal, even if the AG refused, should be subject to prosecution. As the majority states regarding Trump’s attempt to convince the Vice President to falsify the outcome of the election …
Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes, and the President plays no direct constitutional or statutory role in that process. So, the Government may argue that consideration of the President’s communications with the Vice President concerning the certification proceeding does not pose “dangers of intrusion on the authority and functions of the Executive Branch.”
I agree with that approach to Trump’s conduct vis-à-vis the Vice President and the certification but disagree that the Executive requires more than “presumptive immunity” in regard to the AG phone call, based solely on the invented doctrine that all such conversations fall generally within the Court’s definition of “official acts.” While it is true that Presidents must be free to engage in a wide range of even theoretical discussion with administrative officials—and it is also true that the public is often quick to label policy it does not like as “criminal”[2]—the Court draws too bright a red line around the Executive, especially considering the very real indictments before it.
Here, Trump gave an instruction to AG Barr, which Barr refused to follow because the instruction was illegal. Second, the instruction’s purpose was allegedly private rather than public conduct. This implies a two-part test which courts can apply in countless circumstances that will be far murkier than, say, ordering the military to violate the Fifth Amendment and the UCMJ. Here, Justice Barrett’s concurring opinion is carefully considered, and once again, she reveals herself to be an independent thinker among the conservatives, in contrast to the perception of her at confirmation. She writes:
[a] two-step analysis—considering first whether the statute applies and then whether its application to the particular facts is constitutional—is similar to the approach that the Special Counsel presses in this Court.... I do not join [the part of the opinion] which holds that the Constitution limits the introduction of protected conduct as evidence in a criminal prosecution of a President, beyond the limits afforded by executive privilege.
The Court’s “absolute immunity” doctrine is not necessary to protect the Office and, therefore, needlessly increases the hazard caused by a President who would abuse the powers of the Office. Instead, the Court has instructed the lower courts to ignore motive and intent behind “official acts,” and I agree with the dissent that this is “nonsensical.”
Further, we are not talking about the entire Executive Branch but about one individual. If that individual is not prepared to defend himself against hypothetical criminal prosecution after a term in office, he probably lacks the character to be President of the United States in the first place. But more importantly, “presumptive immunity” is sufficient to shield both the individual himself and the nation against the potential harm of political prosecution of that one individual. Here, the majority departs from its “history and tradition” approach by paradoxically acknowledging the novelty of the moment and then ruling as if political prosecutions shall henceforth invade the ordered transition of power. This is a fallacy. If a succession of Trump-like figures is to be the new “normal,” the Court is powerless to predict, let alone prevent, whatever chaos will follow.
Moreover, we can test the rule in this moment because Trump and his goon squad have promised to engage in punitive, political indictments, declaring at rallies etc. that Biden’s policies are “criminal.” Assuming Trump makes good on those threats, the nation faces the same imminent tumult whether Biden himself is granted “absolute” or “presumptive” immunity. Imagining a torrent of unfounded indictments against former Biden administration officials presents yet another test of the constitutional order, which reveals a different hypothetical endgame in which this Court’s “absolute immunity” holding will have been needlessly protective of the Executive.
Either the system will survive the anticipated abuse of the DOJ (though many lives will be ruined), or the system will collapse and, once again, the Court’s opinion is moot. This and other scenarios which force us to imagine genuine existential threats reflect the unprecedented question before the Court. And in that light, reaching no more than “presumptive immunity,” a bar appropriately higher than the “presumed innocent” standard applied to all citizens, would have shown the proper judicial restraint in response to the moment.
Although I believe the Court went too far in adopting an “absolute immunity” rule for “official conduct,” the broader point remains that we call these offices “public trusts” because power is vested in individuals who are trusted to adhere to certain rules and principles. If an individual demonstrates violent contempt for those principles, and the people nevertheless elect him to be President, then no court or rule of law is designed to save the Republic from our failure to keep it.
[1] Comment of Justice Gorsuch at oral arguments.
[2] For instance, I would remind my fellow Democrats how many on the left called Pres. Obama a criminal for his use of drone strikes, including the killing of one citizen operating abroad on behalf of a terrorist organization.
Image: Queen, J. F. Independence Hall State House on Chestnut St, Philadelphia, Pennsylvania. Pennsylvania Philadelphia, None. [Between 1838 and 1886] [Photograph] Retrieved from the Library of Congress, https://www.loc.gov/item/2009632627/.