The Supreme Court’s decision Monday in Donald Trump’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 a president’s official acts.
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 the conservative justices have so persuasively and arduously set as the course for our nation’s highest court. It is a betrayal of the idea that no man is above the law.
The dissent that brings to bear persuasive originalist thinking on the case that makes crystal clear that Trump should face criminal indictment like any other American, opens with a bald-faced lie.
If the public ever grasps how sharply the Republican members of the court have abandoned their own standard of judicial decision-making and how openly the Democratic members have descended into “resistance” fantasy land, the Supreme Court’s reputation as the most-trusted branch of government may never recover.
The biggest problem with the majority’s position is that it makes up immunity out of whole cloth. As the dissent argues, the Constitution plainly contemplates the criminal prosecution of a president for wrongdoing when it says the process of impeachment does not protect anyone covered by the impeachment clause from future criminal liability. That includes presidents.
Moreover, the founders knew about immunity for the head of government. King Charles whom they so despised had it. In order to distinguish the president of the United States from a king, Alexander Hamilton wrote in The Federalist Papers that the president “would be amenable to personal punishment and disgrace.”
Without regard to the founders’ vision, 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 into its commendable originalist case that Trump is liable for his criminal misconduct, but starts with a lie: “The (majority decision of the) Court gives former President Trump all the immunity he asked for and more.”
Indeed, that is the one silver lining today. The majority did not give Trump the absolute immunity that he asked for. For some presidential powers, those most loosely connected to the office, immunity is a “rebuttable presumption” and for “unofficial” acts, perhaps inciting a mob to storm the Capitol on Jan. 6, 2021, the justices offer even less protection.
That means lower courts will have a chance to determine the facts of the cases and make rulings about whether Trump should face a criminal trial for his attempt to overthrow the democratic election of 2020.
There’s little chance this will happen before November’s election so the ultimate deciders of Trump’s fate remain the voters. That’s little consolation with Trump increasingly likely to win as a decrepit President Joe Biden crumbles before us day by day.
A dissent has one job: to provide the plainly just view that will someday rally reformers and save the republic we all love so much. That didn’t happen today.
David Mastio, a former editor and columnist for USA Today, is a regional editor for The Center Square and a regular Star Opinion correspondent. Follow him on X: @DavidMastio or email him at dmastio1@yahoo.com
