Have Questions? Contact Us.
Since its inception, NYCLA has been at the forefront of most legal debates in the country. We have provided legal education for more than 40 years.
Justice Roberts’ Immunity Decision is a Complete Mess
blog
Justice Roberts’ Immunity Decision is a Complete Mess
Yesterday’s Supreme Court immunity decision was written by Chief Justice John Roberts. It has already been the subject of extensive commentary, including prognostications about its effect on November’s presidential election
Written by:
By Richard Swanson, NYCLA President-Elect
Published On:
Jul 02, 2024
Category:
News & Insights
JUSTICE ROBERTS’ IMMUNITY DECISION IS A COMPLETE MESS Yesterday’s Supreme Court immunity decision was written by Chief Justice John Roberts. It has already been the subject of extensive commentary, including prognostications about its effect on November’s presidential election; the creation of a law-free king-like president who has a “law-free zone,” which was the subject of Justice Sotomayor’s impassioned dissent; and even a suggestion by Larry Tribe that we need to amend the Constitution to overrule the decision. My purpose in this blog post isn’t to repeat any of those criticisms. It is to point out as a matter of pure judicial craft just how bad Justice Roberts’ decision is. I frankly expected better of him.
The core of Roberts’ opinion is that a former President is entitled to “some immunity from criminal prosecution for official acts during his tenure in office.” How much is “some”? How is that determination to be made? And how do you differentiate between “official” and “unofficial” acts? Does the “some” equate to “qualified immunity” recognized for presidential aides in civil cases in Nixon v. Fitzgerald, a case in which I was involved more than 40 years ago? Given the pervasiveness of politics and PR in the conduct of the modern presidency, the distinction between official and unofficial acts is almost impossible to make as a practical matter, even if it sounds sensible in theory.
But it gets worse. Justice Roberts declares that there needs to be “a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility.” How is the presumption overcome? And how far can the outer perimeter extend? Can you say “penumbra”?
I don’t envy Judge Chutkan having to deal with these issues on remand. Roberts tried to give her a little bit of guidance on that score, but the guidance he gave makes no sense. He wrote that Trump’s discussions with former Attorney General Jeffrey Clark “are readily characterized” as official, and therefore immune, but his conversations with former Vice President Mike Pence may not be. Say what? Let’s remember the charge, which is that there was a conspiracy to submit fake slates of electors for certain states based on allegations of voting fraud that were rejected by 100% of the courts that considered the matter. He installed Clark to get an opinion that his conduct was official, and lawful, and he wanted Pence to rule that there were enough questions about which slates of electors were legitimate that the issue had to be thrown into the House of Representatives, voting one vote per state, where Republicans’ dominance of small states would guaranty victory. BOTH sets of conversations could be characterized as unofficial, as part of an election process, indeed a fraudulent election process, rather than the discharge of official duties, but Trump will argue that ensuring a fair election is unquestionably part of a President’s responsibilities. It is impossible for me to see that there is a principled distinction between Clark and Pence. The possibilities for confusion in making a nonsensical distinction abound.
Then there is the suggestion that “official acts” are inadmissible even to provide context for the “unofficial” ones. How is that supposed to work in the context of a trial or an evidentiary hearing? Justice Roberts made this point at oral argument, but he walked away from it in his opinion, and the unrealism of his chosen approach was the subject of Justice Amy Coney Barrett’s concurrence.
And where in all of this are the textualism and originalism that these conservative justices are supposed to adhere to? There is nothing in the text of the Constitution or the deliberations of the founders or anything at all in the country’s early history that suggests that immunity was ever considered. This is a pure common-law decision, but one that is based on defective reasoning and that will prove difficult to impossible to implement as a practical matter.
Good luck Judge Chutkan. The Supreme Court has set it up for further review, so if she concludes Trump should not be immune from prosecution they can again reverse.
Justice Roberts is a better judicial craftsman than this. For shame.
The views expressed here are those of the author, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers, or its Board.
Would you like to submit a blog post? Please email your blog post ( 700 – 1000 words) to acutts@nycla.org for review and publication.
A constitutional crisis was borne with this ruling by the SCOTUS Chief justice. The rule of law died on this date and the tyrant became free to dismantle our republic, all of its’ institutions, and all of our rights. The time for revolution has come again. Those brave enough to fight in memory of those Americans who made the ultimate sacrifice will reclaim a republic stronger and more principled than the one that was lost.
To the Honorable Members of the DC Circuit Court for Discussion and Action
.
Our Supreme Court might have accepted your decision finding Trump had no immunity from prosecution for Jan 6 for his attempt to overthrow the election allowing trials to take place prior to the coming election, but instead it dumped the immunity issue back to the DC Circuit Court asking it to define for the ages what actions taken by a sitting President constitute official actions that warrant his being entitled to immunity from prosecution for an alleged crimes committed while in office, a seemingly impossible task.
I, and I think all clear thinking people feel let down by our SC not facing up to the fact that such a decision on top of its previous chances to rule on the issues has caused delays that have brought disrespect to the S C while preventing the American public of a clear picture of what transpired on Jan 6 and thereafter to overturn the election.
The Supreme Court judges may soon be asking amongst themselves if Trump is elected, “What have we done ”, a phrase that came up in the Hush Money trial as their actions and inactions could very well be the tipping point determining a trump victory by its decision.
There is a quick and easy answer that our learned Supreme Court badly needs. The DC Circuit Court should dump back informing the SC that a jury of 12 American citizens can be instructed what constitutes sedition and be relied upon to decide whether Trump’s actions relating to the charges were personal or taken for the benefit of our country.
So here we are, years after the Jan 6 assault on our capitol and overturn the election. Grand Juries have recommended prosecution for Jan 6, the classified documents case and the attempt to overthrow the election cases in Georgia. Charges have been filed by the prosecutors who have prepared the evidence and are ready to present the cases to the jury. The only thing holding up the wheels of justice from working correctly are the courts which have stopped all trials from proceeding. It is now late in the day, but even now if you dump back quickly, the SC may rule and at least allow the sedition case to begin.