Below is my column in the New York Post on the Supreme Court’s historic presidential immunity decision. I am not someone who has favored expansive presidential powers. As a Madisonian scholar, I favor Congress in most disputes with presidents. Yet, the reaction to the Court’s decision has been baffling from academics who did not raise a whimper of opposition when President Barack Obama killed an American citizen without a trial or a charge. When former Attorney General Eric Holder announced the “kill list” policy (that included the right to kill any American citizen), he was met with applause, not condemnation. Moreover, even the government conceded before the Supreme Court that official acts did deserve protection from prosecution. The issue was only where to draw that line. The Court found that there was absolute immunity for actions that fall within their “exclusive sphere of constitutional authority” while they enjoy presumptive immunity for other official acts. They do not enjoy immunity for unofficial, or private, actions.
I felt that there were good-faith arguments on both sides of this issue. The reaction, however, of politicians and pundits is to again denounce and even threaten the justices. Rage has again replaced reason as commentators misrepresent the opinion and race to the bottom in reckless rhetoric. It is not clear what these paper-bag pundits are more upset about: the fact that the Court ruled in favor of immunity or that the Court again failed to yield to years of harassment and threats from the left. What they fail to understand is that this is precisely the moment that the Court was designed for.
Here is the column:
Within minutes of the Supreme Court’s decision on presidential immunity, liberal politicians and pundits seemed to move from hyperbole to hyperventilation. When not breathing into paper bags, critics predicted, again, the end of the republic.
CNN’s Van Jones declared that it was “almost a license to thug, in a way.”
Sen. Richard Blumenthal (D-Conn.) declared: “My stomach turns with fear and anger that our democracy can be so endangered by an out-of-control court” and denounced six justices as “extreme and nakedly partisan hacks — politicians in robes.”
Blumenthal has previously shown greater intestinal fortitude, as when he threatened the justices that they would either rule as Democrats demanded or face “seismic” changes to their court.
Jones warned the justices that “politically it’s bad” for them to rule this way.
The comment captures the misguided analysis of many media outlets. The Supreme Court was designed to be unpopular; to take stands that are politically unpopular but constitutionally correct.
Court independence
Indeed, the Democrats have become the very threat that the court was meant to resist.
Recently, senators demanded that Chief Justice John Roberts appear to answer to them for his own decisions. (Roberts wisely declined.)
Senate Majority Leader Chuck Schumer previously declared in front of the Supreme Court, “I want to tell you, [Neil] Gorsuch, I want to tell you, [Brett] Kavanaugh, you have released the whirlwind, and you will pay the price.”
Now Rep. Alexandria Ocasio-Cortez (D-NY) announced that she will seek the impeachment of all six of the conservative justices. She was immediately joined by other Democratic members.
Notably, scholars have long disagreed where to draw the line on presidential immunity. The court adopted a middle approach that rejected extreme arguments on both sides.
Yet, because Ocasio-Cortez disagrees with their decision, she has declared that this “is an assault on American democracy. It is up to Congress to defend our nation from this authoritarian capture.”
Previously, Ocasio-Cortez admitted that she does not understand why we even have a Supreme Court. She asked “How much does the current structure benefit us? And I don’t think it does.”
Other members, such as Sen. Elizabeth Warren (D-Mass.), have called for packing the Court with additional members to immediately secure a liberal majority to rule as she desires.
For these pundits and politicians, justice is merely an extension of politics and subject to the whims of the majority.
These are same voices who chastised Judge Aileen Cannon for “slowwalking” her decisions by holding hearings on constitutional questions. They pointed to Judge Tanya Chutkan, who supported the efforts of special counsel Jack Smith to try Trump before the election, turning her court into a rocket docket.
Chutkan quickly set aside this challenge, as well as other objections from Trump.
Indeed, at the oral argument, Chief Justice Roberts marveled at the conclusory analysis by Patricia Ann Millett in upholding Chutkan. He referred to the opinion celebrated by the left as little more than declaring “a former president can be prosecuted because he’s being prosecuted.” Chutkan and the DC Circuit were fast but ultimately wrong. Indeed, the Supreme Court noted that the judge created little record for the basis of her decisions.
In a perverted sense, Democrats are giving the public a powerful lesson in constitutional law. As Alexander Hamilton stated in The Federalist No. 78, judicial independence “is the best expedient which can be devised in any government to secure a steady, upright and impartial administration of the laws.”
This is the moment that the Framers envisioned in creating the Court under Article III of the Constitution. It would be our bulwark even when politicians lose faith in our Constitution and seek to dictate justice for those who they dislike.
An ‘Age of Rage’
In my new book, “The Indispensable Right: Free Speech in an Age of Rage.” I discuss other such moments in our history. This is not our first age of rage. During periods of intense fear or anger, people often turn on free speech or other rights as inconvenient or outdated.
We have heard the same voices of the faithless today. MSNBC commentator Elie Mystal has called the Constitution “trash” and argued that we should simply just dump it. Law professors Ryan D. Doerfler of Harvard and Samuel Moyn of Yale called for the Constitution to be “radically altered” to “reclaim America from constitutionalism.”
None of these threats or bloviating will work. The court is designed to stand against everyone and everything except for the Constitution. It was forged for this moment.
Jonathan Turley is the J.B. and Maurice C. Shapiro professor of public interest law at the George Washington University School of Law.
Based on the Supreme Court’s decision about presidential immunity and based on the Supreme Court’s decision last year about the “transfer” of student loan monies, is the current president immune from overstepping the Supreme Court decision of last year–Is it within his office as president to write-off other people’s debt and transferring it to others?
The Legislative Branch and Executive Branch threatening the Supreme Court when it doesn’t rule their way is a real threat to Democracy and our Republic. Lying about the SCOTUS decision to deliberately misinform voters is a threat to democracy and election interference.
When Biden and the Democrats attack the Supreme Court and the constitution, they break their very oath of office to defend the constitution. It would be akin to the Supreme Court justices demanding the dissolution of Congress, or of the Executive Branch, if it disagreed with legislation, or an Executive order – instead of just doing their job and judging whether such laws or executive orders were constitutional or not. The Supreme Court even invalidates its own judgements if it finds them unconstitutional, as it just did last week with the Chevron deference ruling of 1984. ,
Furthermore, it shows a disdain for the separation of powers, the very core of our constitutional republic’s freedoms. When Madison put forth the principles of the separation of powers by dividing them between the three branches of government, then further separation legislative power in the Senate and the House of Representatives, this guaranteed a bulwark against the centralization of power and its inevitable abuse. Madison’s was in fact a proto-post-modern atomization of centers of power.
As Justice Scalia pointed out, it is not sufficient to enumerate rights on paper – ‘parchment right’ – such as those enumerated in the Bill of Rights. They need a strong set of institutions to protect these rights, preventing the accumulation of power in one location, thereby threatening the revocation of these rights at the hands of a dictator, or one political party or the other, such as in the Soviet Union, where Stalin’s lofty constitution of 1936 guaranteeing a plethora of freedoms died in the Gulag Archipelago.
Our politicians, if they were true to their oath of office, would be celebrating this brilliant separation of powers into strong and independent branches, guarantor of our liberty and freedom, instead of attempting to undermine the very constitution of our Republic.
As always, thank you for your wise and balanced commentary.
It’s a lot easier to say “Stalin/Lavarentiy Berie police state fascism”. Where they diligently investigate only their enemies in search of something that can be misconstrued as a crime – rather than investigate all crimes to determine if they are in fact crimes and if so, who committed them. Witness Alvin Bragg and Jack Smith’s return engagement as political campaign assassin.
Much simpler than writing paragraphs in search of something reasonable to explain how they’re acting with their lawfare that long predates Trump who they now use as their justification for their long running police state fascism.
Typical Roberts decision – a stupid attempt to compromise. One that does NOT follow the constitution, and will pose lots of problems in the future.
This decision was TRIVIAL.
A president can not be prosecuted for acts during his presidency UNLESS he is first impeached and convicted.
It does not matter whether the acts are official or not.
This does not put the president “above the law” it just creates a significant barrier to the weaponized political prosecutions they left is currently engaged in.,
As well as those many on the right are demanding as Biden leaves office.
Roberts and much of the court does NOT understand that we need to STOP this woke lawlessness – not because it is Woke, but because it is lawless and ultimately BOTH sides can engage in lawfare.
The court made a similar error in the Misouri free speech case.
There is no government right to free speech. Prior restraint by government – and censorship – even by proxy is prior restraint, must meet the highest standards, Further censorship of political speech must meet the same almost impossibly high standards.
As to standing – ANYONE should have standing when an individual constitutional right is violated.
Regardless, the supreme courts job is not to protect Trump or to protect the government.
It is to follow the constitution and protect individual rights.
I have nop problem with prosecuting a president for their use of official powers – such as pardoning.
AFTER impeachment and conviction in the Senate.
That is a high standard to meet – AS IT SHOULD BE.
But one that would be easily met by a president that committed an unjustified murder unrelated to their role as president.
We can rant and rave – and frankly Obama’s conduct in executing Answar Al Awari was wrong – and otherwise prosecutable.
But there is no chance Obama will get impeached for that much less convicted in the senate.
And that is how it should be.
Presidents are NOT “above the law”
, but they must be protected from political lawfare. We can not have presidents and ex-president facing political lawfare. That will impair their ability to do their job.
Presidents should not have absolute immunity for ANYTHING – not even a bright lines constitutional execution of their job.
Nor should the be easily prosecuted by ambitious prosecutors, or their successors. Or anyone using novel interpretations of the law.
Trump can afford millions in legal bills. Most presidents can not.
While this rulling throws a monkey wrench into political lawfare it does NOT properly solve the problem
Critics of the SCOTUS immunity decision tend to forget that it was the bad behavior of Democrats weaponizing the DOJ (under Democrats the Dept. of Just Us) that made this decision NECESSARY.
So what prevents any president – of any political party – from simply manufacturing “Official Duties”?
Remember we had the Gulf of Tonkin attack during the Vietnam War? What about aluminum tubes in Iraq? What about the so-called “Worst of the Worst” sent to Gitmo (then nearly 90% quietly released without charge)?
Sometimes when presidents manufacture Official Duties, they then try to classify it for 50-100 years. Congress is generally not interested in uncovering these things.
Today in 2024, there are more than 40,000 Americans blacklisted since 9/11 (destroyed & defamed for life) – the vast majority likely totally innocent and no connection to terrorism. There are likely equal or greater number of Trump supporters on these same lists today.
Maybe this is what Sotomayer is correctly concerned about – how it works in real world practice!
How many Presidents went to jail for these crimes? NOTHING has changed. Sotomayor is an idiot
The media endeavoring to report on Supreme Court rulings is akin to taking a dissertation in the process of bringing a cup of coffee to the dinner table and attempting to distill it through a ‘K-Cup’. Something is lost in the effort.
All that upsets the “paper-bag pundits” is that Trump still looms ever larger as the primary resistance to their illiberal agenda. The absurd scenarios being spread to keep their rank and file continuously fearful of what a “rogue” president may now do are blatant examples of hyperbole at its most extreme.
Three words in the majority opinion (thank you Ketanji Brown Jackson for joining and what happened to you, Amy Coney Barrett) serve to calm the dread and horror illiberal pundits and politicians are inciting. The decision reads: “The President is not above the law. But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch (under the Constitution).” The nefarious acts the fear peddlers would have us believe any president may now take are not given a president “under the Constitution”, and if he/she/they conduct themselves outside what they are authorized to do “under the Constitution”, they will find themselves subject to the laws that bind us all.
But then the term “under the Constitution” is not what concerns the fearmongers for they have no regard for the Constitution. The Constitution stands in the way of their authoritarian goals and objectives. In a nutshell, it needs to be done away with so that they might have for themselves that which they would have you fear most: an actual rogue president.
Jeezus…the debate only picked off 8% of the kool aid drinkers
On a related note (or perhaps not)… 😊
https://babylonbee.com/news/supreme-court-votes-6-3-that-biden-never-had-a-six-handicap
Shouldn’t you have just said that the toddlers on the prog/left are having a tantrum again because they didn’t get their way?
Justice Sotomayor’s dissenting opinion is dumbest opinion written in my lifetime. She needs to read and understand the Uniform code of Military Justice that controls the legal and illegal actions of our men and women in uniform.
but a logical explanation of this ruling wouldn’t allow her and her ilk to radicalize and whip up their base for this coming election.
Breaking News: America’s Mayor, the great Rudy Giuliani, has been disbarred.
The Democrat Party’s LAWLESS ASSAULT on AMERICA MUST BE STOPPED.
What the Left is doing to destroy good men is WRONG.
And Obama’s “Russia Dossier” FBI lawyer who deliberately altered an exculpatory document to criminalize an American Naval Academy veteran risking his life to gather intelligence while working in Russia in the private sector was never disbarred.
Nor was Clinton’s lawyer Marc Elias, who engaged in FEC crimes while submitting documents claiming that the money he was illegally paying to a Russian citizen to write the “Russia Dossier” was not campaign spending, but instead payments for legal expenses.
Nor were Obama’s Attorney Generals who perjured themselves to the FISA courts while uttering false documents to those judges – never charged for those felonies, none of been disbarred for felonies committed while in court.
But they’re Soviet Democrat police state fascists – Giuliani is not. Worse: he not only worked for Trump, but he told the truth about the Biden laptop while other lawyers were lying about it.
Bad prosecutions force the court to make un necessary decisions. The left can only blame themselves.
Bingo
The key problem: those who dislike the decision improperly frame it as the Court holding that “Donald Trump” has certain immunity, not that “the President,” regardless of the individual, does. One wonders, perhaps we need not wonder, what their take would, or perhaps will, be if Biden is re-elected and he, or any future Democrat President, asserts immunity.
Has anyone compared or contrasted this case with Clinton v. Jones, https://supreme.justia.com/cases/federal/us/520/681/? That case involved pre-Presidential conduct; Clinton-dislikers mischaracterized it as “Bill Clinton says he’s immune from sexual harassment claims,” while supporters saw it as a proper claim of limited immunity, to defer civil actions until a President leaves office. The Court, in a unanimous decision, ruled that civil actions can proceed and are not constitutionally required to be stayed until the President (again, regardless of individual identity) leaves office.
Look!
Orange man, bad!
And I am not talking about Trump.
And that is how you know how desperate the Biden “team” is and how someone thought that was a good idea.
Who are you talking about then?
Is this some kind of racist dog whistle?
Or if a ‘joke’ why no use of /s?
Biden bathed in bronzer before his “speech” last night, to look less like a corpse, I guess…
Are you fvcking stupid? who gave you a phone??
The majority opinion: A president has immunity for those acts taken within the “exclusive sphere of constitutional authority.”
Sotomayor, in dissent: So a president “[o]rders the Navy’s Seal Team 6 to assassinate a political rival?” Immune.”
Who knew that a president has the “constitutional authority” to commit murder?
It’s amazing what one can learn from the Court’s dumbest justice.
Clearly sotomayor’s interns were binge-watching netflix before they wrote that.
imagine a dinner with sotomayor and biden. JFC.
The president doesn’t have constitutional authority to murder anyone, BUT he can’t be prosecuted for it if it’s done as an official act. Because any official documents or communications cannot be used as evidence. Therefore, prosecutors cannot prove in court he committed murder. He would be immune from any charges.
See: Seth Rich
George stop talking like a toddler and put down the puberty blockers
Sam,
That was dumb.
Barack Obama assassinated American citizens without trial. He even told his aides: “I’m really good at killing people.” No concern at all from the same Democrats who rail about Trump.
Democrats already tried Trump for alleged J6 “crimes” during Impeachment #2. Trump was acquitted. The end.
This blow from liberals of all stripes explains why that crowd is preceded by the term “madding”. Jonathon is right that the holding on presidential immunity is exactly what the Supreme Court is for, and at the right time. This issue is what Justice Jackson had in mind when he said “ We are not final because we are infallible, we are infallible because we are final.” If we look at what Chief Justice Roberts said about how hard the job of President is, you want him or her to have the authority to discharge the responsibility. That’s why immunity is squarely in the mix. Who among us has not had a job at one time or another set up for failure for lack of authority to execute the responsibility?
Hopefully, the Supreme Court opinion will not stop Obama, (the) Bush(es), and/or Clinton from being charged for their crimes (not that they were going to be in the foreseeable future, unfortunately).