The Supreme Court’s decision on Monday donald trumpThe President’s immunity case is a 119-page distillation of everything that is wrong with our politics. History will judge harshly the decision that creates an imaginary “absolute immunity” for the official acts of a president.
The Republican majority opinion in the Trump immunity case is a disaster of anti-constitutional thinking that fails to live up to the originalist standards that conservative justices have so persuasively and arduously set out as the path to our nation’s highest court. It is a betrayal of the idea that no man is above the law.
The dissent that brings to the fore persuasive originalist thinking about the case, that makes it absolutely clear that Trump should face a criminal charge like any other American, begins with a bald-faced lie.
If the public ever understands how abruptly the Republican members of the court abandoned their own standard of judicial decision-making and how openly the Democratic members descended into the fantasyland of “resistance,” the reputation of the Supreme Court as the branch of government more reliable may never recover.
The biggest problem with the majority position is that it creates immunity out of thin air. As the dissent argues, the Constitution clearly contemplates criminal prosecution of a president for wrongdoing when it states that the impeachment process does not protect anyone covered by the impeachment clause from future criminal liability. This includes presidents.
Furthermore, the founders knew about the immunity of the head of government. King Charles, whom they so despised, owned it. To distinguish the president of the United States from a king, Alexander Hamilton wrote in The Federalist Papers that the president “would be liable to personal punishment and disgrace.”
Regardless of the founders’ views, the Supreme Court has literally given Trump permission to jail his political opponents or accept bribes for official acts while in office, without fear of prosecution when he leaves.
The dissent signed by Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson launches its laudable originalist case that Trump is responsible for his criminal misconduct, but it begins with a lie: “The (majority decision of the) Court gives the former President Trump all the immunity he asked for and more.”
In fact, that’s the only silver lining today. The majority did not give Trump the absolute immunity he asked for. For some presidential powers, those more loosely linked to the office, immunity is a “refutable presumption” and for “unofficial” acts, perhaps inciting a mob to storm the Capitol on January 6, 2021, judges offer even less protection.
This means that lower courts will have the opportunity to determine the facts of the cases and make decisions about whether Trump should face a criminal trial for his attempt to overturn the 2020 democratic election.
There is little chance of this happening before the November elections, so the final deciders of Trump’s fate remain the voters. This is little consolation as Trump is increasingly likely to win while a decrepit president, Joe Biden, crumbles before us, day after day.
A dissent has one function: to provide the clearly just vision that will one day rally reformers and save the republic we all love so much. That didn’t happen today.
David Mastio, former editor and columnist for USA Today, is regional editor for The Central Square and a regular correspondent for Star Opinion. Follow him on X: @DavidMastio or email him at dmastio1@yahoo.com
