It has been a longstanding principle of judicial restraint in the US that judges ought not to read their politics or personal preferences into the laws of the republic. Supreme Court Chief Justice John Roberts, dissenting in the same-sex marriage case Obergefell v. Hodges, wrote that “Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise ‘neither force nor will but merely judgment.’”
The Chief Justice would have done well to observe those principles last week when deciding Trump v. US, the decision that incomprehensibly and irresponsibly granted the US President immunity for any act remotely considered official. The Supreme Court, by force and will, disavowed the egalitarian undergirding of our republic by placing the president outside of the law’s reach. Whereas the Constitution explicitly says that those who are impeached, including presidents, “shall … be liable and subject to Indictment, Trial, Judgment and Punishment,” the court has seen fit to disregard the Constitution’s text to shield Donald Trump from criminal prosecution in the service of political interests.
As a constitutional republic committed to equality under the law, we strive to hold each of our citizens to the same standard of behavior. The rule of law is founded upon the idea that law is equally binding to all, regardless of office or station, and participation in our free society is conditional upon obedience to that law. President Theodore Roosevelt enumerated this principle in 1903 when he said, “No man is above the law and no man is below it; nor do we ask any man’s permission when we require him to obey it.” We need not ask the “unelected committee of nine” for permission to hold our leaders accountable when this nation was founded upon the idea that our presidents are servants, not kings.
Though the majority in Trump would assert that the immunity granted to the president is limited and emanates from the Constitution, neither of those claims are functionally true. Article II of the Constitution enumerates core presidential powers including the power to grant pardons, sign treaties, and appoint Supreme Court justices. It lacks language shielding the president from immunity, as Justice Sonia Sotomayor pointed out in her dissent. The Supreme Court not only granted absolute immunity for actions within the president’s “conclusive and preclusive constitutional authority,” but presumptive immunity for acts “within the outer perimeter of his official responsibility.”
The latter is an excessively broad construction designed to shield the president from any kind of prosecution when the act at issue could be considered official. In the majority opinion, Chief Justice Roberts asserted that Trump’s discussions with Justice Department officials regarding alleged voter fraud have absolute immunity to prosecution and that his conversations with Vice President Mike Pence about blocking the 2020 election certification are presumptively immune. According to the court, a president cannot be prosecuted even for attempting to defraud others in the executive branch, so long as the discussions are “official” in nature.
Think about, for example, what would happen if the president committed a crime against humanity. Since the president is Commander-in-Chief of the armed forces, control of the military fits squarely within his or her official responsibilities. Would an act of genocide qualify as an “official act” according to the Supreme Court? Probably. With this decision granting the President such broad immunity, and the US not being a party to the International Criminal Court (ICC), the Supreme Court has sanctioned impunity for some of the worst atrocities, as long as they are committed by the right person.
Defenders of the Trump decision may argue that it upholds the rule of law by removing the ability of an administration to corruptly prosecute the previous one for trivial offenses. While it may be occasionally prudent to refrain from such prosecution, as in Watergate, there are necessary limits to what the country can tolerate. The willingness to preserve domestic tranquility should not be mistaken for tolerance of executive misdeeds. One of the executive branch’s powers is prosecutorial discretion, and it is up to the Justice Department to weigh whether the prosecution of a president would do more harm than good. The Supreme Court’s decision largely takes away this discretion as it pertains to the President, meaning that the president could use his or her powers to harm the population without fear of repercussions.
The Supreme Court lacks the authority to make law out of thin air. The Constitution, as the legal foundation of our society, demands obedience from all judges and public officials. The Supreme Court acts outside of its authority when it reads provisions into the Constitution instead of deriving them from the text. The irony that the stalwart defenders of originalism on the court found immunity where it does not exist cannot be lost on any observer. The rule of law fails when those who are supposed to defend it ignore the law and instead insert their own political preferences. The republic will only survive if those entrusted with the preservation and defense of the Constitution remain faithful to its provisions, else the law will mean nothing.
This editorial is part of a new initiative launched by JURIST’s Editorial Board In these turbulent times. As a non-profit legal news organization, we remain committed to providing authoritative, objective and consistent coverage of worldwide rule of law-related news, but we feel it our responsibility to speak out at least occasionally on critical events and matters having the potential to undercut the core values that we collectively subscribe to as law students and lawyers who are not and must not be disinterested observers.
