This court has previously declared that a president isn’t above the law
By Herbert Rothschild
The U.S. Supreme Court isn’t obliged to hear every case that is appealed to it. Indeed, overwhelmingly it doesn’t. Many legal pundits thought that it wouldn’t agree to hear former President Donald Trump’s appeal of the Feb. 6 ruling by a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit that he does not enjoy complete immunity from federal prosecution for anything he did while president. That ruling was unanimous and unqualified. It would be “a striking paradox,” the judges wrote, if the president, who alone has the constitutional duty to ensure that laws be faithfully executed, “were the sole officer capable of defying those laws with impunity.”
Yet, on Feb. 28 the high court issued a writ of certiorari agreeing to hear arguments during the week of April 22 on the question of “Whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
The practice of the court is to “grant cert” if at least four of the nine justices desire it. I could find no mention of who the four judges were in this case. Knowing their identities might have helped us understand their motive.
The motive raising the least anxiety would be that some justices felt that, although letting the appeals court ruling stand on this matter would settle the matter legally, its ruling wouldn’t carry enough weight with public opinion to settle the matter politically. Nothing short of a Supreme Court decision could do that. A far more troubling motive would be that, for at least four judges, the question on appeal is an open one.
That the question of presidential immunity isn’t a closed question, however, is puzzling. When Trump was president, he made this same claim. At a press briefing on April 13, 2020, he said, “When somebody is the president of the United States, the authority is total and that’s the way it’s got to be. … It’s total.”
The U.S. Supreme Court didn’t agree. In both Trump v. Vance and Trump v. Mazars, opinions issued on July 7 of that year, seven of the nine justices rejected Trump’s claim that as president he has total immunity from criminal processes. In Vance even the two dissenters — Justices Samuel Alito and Clarence Thomas — agreed that sayings like “no man is above the law” and “the public has a right to every man’s evidence” are “true” and “important,” although in this case they said “they beg the question.”
Trump v. Vance was a state case. It arose from Trump’s refusal to turn over his financial records to the Manhattan district attorney, who was investigating Trump’s business practices. Mazars arose from the House Judiciary Committee’s subpoena of those same records prior to its first Trump impeachment proceeding. Again, all nine judges rejected Trump’s claim of total immunity, but they didn’t deliver as resounding a rebuke to him as they did in Vance. The majority held that Congress needed to make a clearer case in the lower courts that the requested documents had a close relation either to Congress’s legislative or oversight powers and sent the case back to the district court to settle that quite different matter.
The only change in the makeup of the court since the Vance and Mazars decisions occurred on Oct. 27, 2020, when Amy Coney Barrett took the seat left vacant by Ruth Bader Ginsburg’s death. Even if Barrett is so corrupted by partisan allegiance as to side with Trump, probably the court will still rule at least 6 to 3 that a president isn’t above the law. Which gives rise to the possibility that some of the judges, while knowing that the court won’t allow a president to become a dictator, wanted to delay the start of his criminal trial so that a possible conviction won’t damage his chances for reelection.
Whatever the court’s motive for granting cert, it’s troubling that cases asserting such a claim keep reaching it. Before Trump, in my lifetime the only case close to comparable stemmed from former President Richard Nixon’s penchant for wiretapping his perceived enemies. In United States v. the United States District Court for the Eastern District of Michigan (1972), the appeal of a ruling by the district court that a president had no authority to order wiretaps on American citizens without a judicial warrant, Nixon put forward the claim that he had the “inherent power as chief executive officer of the United States . . . to protect the security of the nation.”
This citing of national security, which before and since has carried considerable weight with federal courts, was soundly rejected in an 8 to 0 decision (Justice William Rehnquist recused himself from the case; before his appointment he had been one of the architects of this scheme to subvert our liberty). “When the executive attempts to excuse these tactics as essential to its defense against internal subversion, we are obliged to remind it, without apology, of this court’s long commitment to the preservation of the Bill of Rights from the corrosive environment of precisely such expedients.”
Nixon only claimed an authority untrammeled by law in the instance of domestic wiretapping and perhaps, by extension, all national security matters. Trump claims the untrammeled authority of a president to do anything he wants, including, infamously, ordering a Navy SEAL team to assassinate a political rival (a hypothetical case one of the three judges of the appeals court put to Trump’s lawyers during oral arguments). The court’s decision in Trump’s case will be a useful measure of how far our country may have drifted toward autocracy since 1972.
Herbert Rothschild’s columns appear on Friday in Ashland.news. Opinions expressed in them represent the author’s views. Email Rothschild at herbertrothschild6839@gmail.com.
