← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Opinionpalooza: The Supreme Court Puts Presidents Above the Law (Preview)
00:10:58
The Supreme Court says, if you’re the President, we’ll let you do it.
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- [00:06]
A
Hi, it's Dahlia Lithwick. And as we careen to the conclusion of a Supreme Court opinion palooza season in which the high court has grabbed unprecedented powers unto itself, the conservative majority of the court rounded out the term by gifting massive unprecedented power to presidents. The long awaited immunity ruling that was evidently designed to be long awaited or had already put a thumb on the scale for former President Trump. But today, effectively throughout the scale ruling that Trump and any future president may enjoy wide ranging immunity from criminal prosecution because coups are constitutional as long as you make them official. Here's a taste of my conversation with Slate's Mark Joseph Stern, senior writer on the courts and the law, and Professor Corey Brettschneider, who teaches constitutional law and political theory at Brown University and is the author of the brand new book the Presidents and the People, Five Leaders who Threaten Democracy and the Citizens who Fought to Defend It. And Mark, I think this is really kind of the core issue that people are going to struggle to understand today. And let's really parse it out. The majority opinion as penned by the Chief justice differentiates between criminal acts that are official acts and unofficial acts. That's the game changer. And I would love for you to help us understand if the court has a marker of the difference between the two, what that line is and why it really matters.
- [01:38]
B
Yeah, I mean, I do not see how the trial court here can apply this decision with any modicum of certainty or consistency because what Roberts has delivered is a Ziploc bag full of muddy water. And trying to find clarity in it feels like impossible. And that's the whole point. So he creates this taxonomy between official acts and unofficial acts, like you say, and allegedly unofficial acts are unprotected. So he says when the president is not acting within his authority, it's an unofficial act, and so that can be prosecuted after he leaves office. But then he again kind of confuses things by differentiating between different kinds of official acts and saying, well, there are some official acts that fall within his exclusive sphere of constitutional authority and those receive absolute immunity. So think of the pardon power. The Constitution actually says, right, that the president can pardon people. Doesn't say anything about this presidential immunity. That's all made up. But it does say he can pardon people. So Robert says, well, you know, if somebody decided to bribe the president, give him a million dollars in exchange for a pardon on January 19th at the end of his term, well, too bad, that might be corrupt, but that falls within his exclusive sphere of authority and that can never be prosecuted And Justice Sotomayor confir terms that reading. I think it's just undeniable. And then Roberts talks about this other class of official acts that fall within the outer perimeter of his constitutional authority. And this is where I think the bulk of the mischief is going to happen, because Roberts defines these acts at an extraordinarily high level of generality. Right. He talks about how the President has a duty to take care that the laws be faithfully executed. And so when the President is acting pursuant to that sort of generalized executive authority authority, that there is a presumption of immunity against criminal prosecution, and that in theory, prosecutors might be able to rebut that presumption, but they also might not. Robert says, look, it might be absolute, but we don't need to decide that today. We're going to leave it open. We're going to say that there's a chance that it can be rebutted, but prosecutors have to bring forth evidence that it was not actually done. These acts pursuant to official duties. And by the way, in the process, courts cannot look at a president's motive. So basically, courts have to operate under the assumption that a president is telling the truth when he claims that anything he does falls within the outer perimeter of his authority because he's acting, you know, as president, pursuant to his constitutional duties. And courts somehow, with that major limitation, have to try to suss out whether prosecutors have sufficiently rebutted this presumption. I think in practice, this is just going to mean that anytime the President says, I was doing that because I was president, that courts are going to grant him immunity. And if they don't, it will be appealed up to the Supreme Court, and the Supreme Court will grant him immunity, because as Justice Sotomayor again says in her dissent, it is impossible to find any kind of clear dividing line here that would allow prosecutors to definitively rebut this presumption of immunity. And even if they could somehow meet this incredibly high bar, the case could go back up to the Supreme Court, and the justices could say, well, you know how we never actually said whether that presumption could be rebutted? Well, we've decided it actually can never be. And so now this immunity is absolute. So what you get is a big bag of slop where every single thing the President ever claims to have done because he's president gets this sweeping immunity. And whether you want to call it absolute or near absolute in practice, it is going to prevent a jury from finding that the president committed a number of crimes because the way that he committed those crimes was by manipulating the tools of his office and then claiming that he was just, just acting as president so he can never, ever, ever face accountability.
- [05:39]
A
And Corey, like you're explaining this to my mom, the lines that have been trammeled here, you know, you've already talked about president, former President Mark is talking about official versus unofficial conduct. We're talking about core functions versus outer perimeter functions. Right. There's all these lines. There's criminal, civil. Right, that's another line. Help us understand again what a sea change this was from yesterday before this decision came down. Because I just feel like this is going to get covered as a Donald Trump story. This is not a Donald Trump story. This is a separation of power story and fundamentally a structural change to democracy as we understand it.
- [06:24]
C
Absolutely. They have really rewritten presidential power and aggrandize it in an extreme sense, well beyond, it's already very strong, but well beyond anything that I think could have been contemplated in the Nixon era or in recent history, really. And so to get into it, I'll say how they would frame it. They would talk about Fitzgerald, which is a case in which Nixon fired and was sued for firing a member of the Air Force. And what the court did say there is that even though Nixon was no longer president at the time the court decided the case, he was immune from this civil lawsuit. He could not be sued for damages. And they said this firing was an official act. It was part of his official duties as president. And they wanted to immunize, again for pragmatic reasons, former presidents from civil suits. They didn't want a president when they were acting in good faith to think, should I do this firing or not? And worrying about being sued, they wanted them to be able to simply do it. Now, what we've done, and here's the sea change, is we're not talking about suing someone or money damages. And we're not talking about, even though they are claiming that these are official acts, we're not talking about a President acting in good faith. By definition, a criminal act is a bad faith act. And yet what they have said, not seem to have said, is that even former presidents when it comes to official acts, can't be charged with a crime, can't be indicted, and we can't bring cases against them. Now, the million dollar question is, well, what about January 6th? Was that an official act? By the way, the phrase outer perimeter comes from Fitzgerald as well. Because they say even when it comes to these civil lawsuits and the immunity, we're not saying like in every case, because sometimes there are cases at the edge. We recognize there are gray areas between official and unofficial acts. And they use this phrase that acts within the outer perimeter of official duty. We're not going to immunize. Now to me, and they're talking about criminal cases. Official acts certainly were at minimum at that gray area beyond the outer perimeter. And so what they're really doing is claiming to rely on Fitzgerald but really rewriting it because criminal acts are just a different animal altogether. And they're immunizing a president for these, they claim official acts. Now getting back to January 6th, is that an official act? What? There was no evidence that the president was acting in any good faith way. Every single court, as we know, rejected the claims of fraud. But he claims he was trying to prevent fraud, that he was acting in good faith. And the court seems to be going along. I agree with this argument. We don't know for sure because they've sent it back to the lower court. They say there's a factual question about whether or not these charges in the January 6 case are official acts or not. So we're going to have to wait. Delay, delay, delay. By the way. And here's the other bottom line. This is going to take time. And if he wins, certainly he's immunized. As I see this in the decision not clear as day, sitting presidents under this decision almost certainly are going to be immune. And so if he makes it to the presidency, that might be the end of it. But it is a sea change and it is hard to explain, but Fitzgerald was about private lawsuits, a totally different kind of question. And it had this limited idea of official duty that's greatly expanded and they've introduced really this new category of criminal acts that are within the official duties of a president. And they've said presidents are indeed immune from them.
- [10:05]
A
Slate plus members have access to all of our OpinionPalooza content, weekly bonus episodes from Amicus ad free versions of all of Slate's podcasts. And they never ever hit a paywall@slate.com if you are not a subscriber, go to slate.comannikaplus to join or if you're listening in Apple Podcasts, click Try free at the top of the show page. We'll be back on Saturday with the first of our end of term breakfast table episodes where I will be joined by some very, very smart legal thinkers to take a step back from the immediate fallout of the cases to look at the big themes and the long term effects of this wildly, monumentally consequential term at the U.S. supreme Court. We'll talk to you then.