The 'Bloodless Coup' Has Started...with the Court

How the Supreme Court pulled a Jedi mind trick to elect and protect Trump.

Last came Anarchy: he rode
On a white horse, splashed with blood;
He was pale even to the lips,
Like Death in the Apocalypse.

And he wore a kingly crown;
And in his grasp a sceptre shone;
On his brow this mark I saw –
‘I AM GOD, AND KING, AND LAW!’

Percy Bysshe Shelley, The Masque of Anarchy, VIII-IX

I promised in my immediate hot take after the Trump immunity decision was handed down that I would offer some more detailed thoughts once I had a chance to parse the opinion. All I can say that it is even worse than even what I initially thought at first blush. That’s because there are so many implications written between the lines that fundamentally alter the balance of power among the branches, not only making the President effectively a king, but making the Court’s conservative majority the kingmakers who rubber stamp or veto what kinds of actions get immunity (thereby ensuring that any potential dictator is symbiotically dependent on the Court to preserve his facade of legitimacy).

To explain this, let’s look at how the Court framed the issue, which is determining whether an action is “official” or “unofficial.” To the Court, this is the dividing line that determines immunity, which the Court places on a spectrum from “absolute” to “presumptive” to “no” immunity. I made a helpful flowchart that illustrates the way that the Court sees how the determination of official vs. unofficial conduct should be made, and how those determinations impact the type of immunity that results.

What you might notice if you follow the lines above carefully is that the question of motive — the reason that an action was taken — doesn’t even enter the equation until after the determination of whether the actions was official or unofficial has been made. Indeed, the Court explicitly states that “In dividing official from unofficial conduct, courts may not inquire into the President’s motives.”

This is an astonishing statement, because it effectively means that it does not matter if a President uses the official levers of power with corrupt intent, for personal gain, or as retribution. In other words, the Court engages a sleight of hand where a critical distinction between lawful and unlawful conduct — the heart of criminal law, which rests on whether a person acted with a specific state of mind, or mens rea — ceases to exist when it comes to the President. Once this distinction is erased, the office of the presidency is basically a get out of jail free card, enabling the President to do pretty much anything that could plausibly be characterized as “official.” Take a look at this table:

In other words, the Court has created immunity for the one category of actions where it actually matters — unlawful official acts — everything else that is left either would have never been prosecuted anyway or was always fair game.

Further, the determination of whether an action is official if left in the hands of the courts. But conveniently, the Court has offered lower courts so little guidance on how to apply its little rubric that it has ensured that the majority will be the final umpire on this question. It’s hard not to imagine that the lines will be drawn depending on which party occupies the Oval Office.

Understanding the above, here are a few big takeaways from the opinion:

The President Can Obstruct Justice

It seems like it’s been a given at least since Nixon that a President isn’t allowed to obstruct justice, and can be investigated and prosecuted for doing so. In fact, when Trump fired FBI Director James Comey, prompting the appointment of Special Counsel Mueller, he opened an investigation into obstruction of justice separate and apart from the investigation into contacts between Trump’s campaign and Russia related to the 2016 election. The entire second volume of the Mueller Report was an analysis of ten potential counts of obstruction of justice, which Mueller noted in a footnote could be prosecuted after Trump left office (though there were crickets on this once Merrick Garland became the attorney general and we never heard about it again).

What the Court has done in the immunity case is read out the word “faithfully” from the Take Care Clause, which reads, “he shall take Care that the Laws be faithfully executed” (U.S. Const. Art. II. Sec. 3, emphasis mine). Importantly, the Court considers the Take Care Clause as being a “core, exclusive, and preclusive authority” (see chart above), and therefore any acts taken pursuant to it is untouchable by any criminal laws passed by Congress. That means is so-called “process crimes” — crimes prohibiting obstruction, witness tampering, forging evidence, etc. — no longer apply to the President, provided he uses his own Justice Department or other executive branch officials to engage in them.

For the record, I think this is legally wrong. In creating these crimes, Congress was giving effect to the word “faithfully” when those statutes are applied to the President, i.e., he has to act in good faith, not corruptly. In fact, I would argue (and have) that under its Art. I power to create lower courts and to enact laws “necessary and proper” for bringing into effect its own powers, Congress has every constitutional authority to protect the integrity of the justice system. (And, just as a matter of constitutional interpretation, the Constitution is supposed to be read to give every word meaning and effect — we assume that the Framers did not include words carelessly or to render them superfluous.) Obviously, the Court disagrees.

In short, the Court implicitly reads the Take Care Clause as imposing no constraint on how the laws should be enforced, meaning that as long as the President uses his Attorney General or other “official” subordinates to obstruct justice or otherwise thwart the administration of justice, or commit any other crimes, he is untouchable.

The Court Sees the “Real” Problem as Sham, Politically-Motivated Prosecutions…Except When They are Actual Sham, Politically-Motivated Prosecutions

I’ve been hearing a refrain from the MAGA right that “the Court didn’t do anything new, it just stated how it has always been for the last 200 years.” I have seen this claim repeated on social media so many times that I can only conclude that Hannity or Breitbart has put it into circulation. In any event, it is, not surprisingly, untrue.

The immunity question was, at best, an unsettled area of law — and to the extent that limited precedent existed it pointed in the opposite direction. (I highly doubt Nixon would have stepped down, or needed a pardon, if it was so clear that he enjoyed immunity.) In fact, the case which Trump was trying to extrapolate from, Nixon v. Fitzgerald, which established absolute immunity from civil liability for acts in the “outer perimeter” of a President’s official duties, counseled in the opposite direction when it comes to criminal liability. That’s because while every person has a private cause of action for civil suits, which could potentially open the floodgates of endless litigation if everyone who claimed to be harmed by the President could sue him. By contrast, the power to bring criminal cases is not only centralized in relatively few government prosecutors, but is limited by their ability to overcome evidentiary and procedural hurdles in charging and proving a case.

Writing for the Court, however, Justice Roberts thinks these due process protections aren’t enough to protect a former president. Apparently, not providing immunity would suddenly open the floodgates of prosecution (though the Court does not explain why this has never been a problem before now). This fiction can only be maintained, however, if you think that the motive for an action is irrelevant to whether an action can properly be considered official or not official. If you think that the intent matters, most ordinary criminal laws don’t even reach what we would consider lawful presidential acts. For example, in her partial dissent Justice Amy Coney Barrett notes that statutes prohibiting “unlawful” killings would not include military or law enforcement actions taken to protect U.S. interests, like if the president ordered a hostage rescue mission and some people got killed. (This public authority exception is also why the oft-cited argument that without immunity Obama could be prosecuted for ordering a drone strike against Anwar al-Awlaki is so dumb, and incorrect.)

In other words, absent evidence of a corrupt motive, prosecutors wouldn’t be incentivized to bring politically-motivated prosecutions because they simply wouldn’t be able to prove a case against a former president for executing his actual official duties, or even have probable cause to indict him. (Barrett notes that Presidents also get a benefit that most other defendants don’t enjoy, which is that they can challenge the constitutionality of a statute as applied to them before trial, allowing meritless charges to be thrown out from the get-go.)

You might be thinking, “But doesn’t this protect President Joe Biden, if Trump wins in November?” After all, what’s good for the goose is good for the gander: Some commentators have interpreted the Court as imagining Trump as President, rather than as a defendant, and that the opinion prevents him from going after his predecessors if he retakes office.

The problem is that they have done the exact opposite. Because, as noted above, all official acts are completely shielded from any kind of investigation or review, a President can now use his Justice Department to bring false charges against former presidents for “unofficial” acts, and even fabricate evidence to do so. Indeed, the one act, and piece of evidence, which the Court explicitly took off the table in Jack Smith’s January 6 case was Trump’s orders to Acting Attorney General to Jeffrey Clark to send a letter to Georgia officials containing false allegations of voter fraud. That was an attempt at a sham investigation, based on fabricated allegations. That is now an official act, folks.

All I can say is that if Trump wins the presidency, you can 100% expect so-called “evidence” about the Bidens and Burisma or some other conspiracy to surface very soon after he takes office, and for indictments to ensue. And under the Court’s reasoning, there would be nothing to stop him from doing that, nor would its reasoning protect President Biden.

The Court Believes in a Unitary Executive, But Only When a Republican is President

The weirdest aspect of the Court’s opinion is that it claims to be grounded in separation of powers principles. It’s ironic considering the facts of this case, which involve a President trying to prevent the executive power from vesting in a newly- and duly-elected successor. After all, die-hard “unitary executive” adherents — who believe in expansive, and almost limitless executive power — point to the Vesting Clause, which states that “all executive power shall vest in a President of the United States,” as the constitutional source of that theory.

This irony highlights the internal contradiction of the Court’s reasoning. By placing a President’s “official acts” beyond Congress’ legislation and even courts’ ability to review, the Court is not keeping the government in balance, but significantly aggrandizing the Executive Branch at the expense of the other branches. Considering the majority, however, this isn’t so surprising: They are all big proponents of the unitary executive theory.

But here’s where it’s weird: At the same time the Court claims this BIG IMPORTANT AND UNTOUCHABLE executive power, it has no issue with curbing the current executive branch, which happens to be headed by a Democrat, from exercising the full breadth of its authority to enforce the laws. In other words, within this supposedly “unitary” executive power, the Court has created a carve out where a sitting president has no power vis a vis a very small category of people: former presidents. Hmmm.

Again, it might seem that on its face, this carve out doesn’t favor a president of one party over another. And if we were living in a vacuum of faceless Democrats and Republicans who were relatively the same distance from either side of the political center, that might be true. But we are talking about Trump, and Biden (or whoever ends up being the nominee), and two parties which are asymmetrically polarized, with the Republican Party veering off to the extreme far right. Which means we are talking about one prospective president who has every intention of weaponizing the government against his enemies (and has been very clear about that) and one who isn’t.

So think about it: Although President Biden theoretically has the power to order Seal Team Six to assassinate Trump today, if he wanted to, we all know he won’t. And precisely because we know he won’t, he doesn’t need the kind of immunity that the Court created. (And, as noted above, isn’t protected by it in the case of a bad faith successor.) By contrast, the one person who has and will use the powers for corrupt, criminal, and self-interested ends while in office is Trump. And the one person who needs immunity while out of office is Trump.

In short, the Court conveniently places a bad faith former president out of the reach of a good faith sitting president, which in our current political landscape benefits one party when in office and constrains the other. Some unitary executive.

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The worst part of this case is that it becomes obvious that there was a moderate position that the justices could have taken that would have achieved the majority’s purported goals. The Court could have simply said that any official act — even one in the outer perimeter of the president’s duties — has presumptive immunity. That presumption can be rebutted if the government shows that the action was taken with a corrupt motive or for personal gain. That would have discouraged politically motivated prosecutions, reinforced the rule of law, and helped protect the executive branch. It also would have preserved the difference between lawful and unlawful acts.

Instead, the Court has decided it will not only protect, but enable, the one class of actions that actually should be deterred, criminalized, and prosecuted. And it does so knowing that we are on the brink of authoritarianism. God help us.