The Supreme Court heard oral arguments Thursday on Donald Trump’s claim of immunity from prosecution for acts taken in his official capacity as president. The conservative justices appeared to doubt the Biden Justice Department’s assertion that the president has no criminal immunity, and it looks as though the matter won’t be cleanly or swiftly resolved.
It might well have been impossible for the Justice Department to prevail outright in the case. Several of the justices served in presidential administrations and have firm views about the scope of executive power already. But the Justice Department also relied on arguments that were bound to be unpersuasive. There was an alternative route, hinted at by two of the court’s liberal justices, that would have been more politically provocative but perhaps carried more weight.
First, some background: The most important precedent in this case is 1982’s Nixon v. Fitzgerald, which held that presidents generally cannot face civil lawsuits for “official acts” they took in office because that would hamper their constitutional responsibilities. Should the same logic apply at all in criminal cases?
This isn’t so much a legal question as a value judgment about how democracy should function. The Constitution has no answer. The pragmatic case against immunity is based on the risk of a president becoming a tyrant in the absence of criminal accountability. (Hence Justice Elena Kagan’s question about whether a president could be prosecuted for ordering the military to stage a coup.)
The pragmatic case for immunity is based on the risk of partisan prosecutions in an environment of eroding political norms. (Hence Justice Samuel A. Alito Jr.’s question whether the Justice Department’s position would “lead us into a cycle that destabilizes the functioning of our country.”)
The Justice Department tried to undermine the pragmatic case for immunity by declaring, in essence, that prosecutors are so exquisitely honorable and beyond reproach that politicized charges against former presidents are no great concern. That is both a dubious description of current political reality (just listen to Trump promising to unleash the Justice Department on his opponents) and at odds with the conservative approach to constitutionalism, which assumes, as the Founders did, that politics will always be rife with mischief and self-interested behavior.
Michael Dreeben, the lawyer representing the Justice Department, emphasized that the election interference case against Trump is a “once-in-history prosecution.” He said prosecutors have “no incentive to bring a case” if it isn’t well-supported. He also insisted that “the Department of Justice takes criminal law very seriously. It runs it through the analysis very carefully with established principles.” It is staffed by people who “adhere to their office.”
The prosecutors’ brief cited the Justice Department manual guidelines as a safeguard against wrongful prosecution — even though, as Harvard Law School’s Jack Goldsmith has pointed out, it is probably violating that very manual with its rush to trial in this very case.
Follow this authorJason Willick‘s opinionsThe bottom line is that the case against presidential immunity relied heavily on the idea that the justices should trust the Justice Department — not just this department but all departments in the future. Prosecutors are strait-laced, the apolitical good guys. They can put aside personal beliefs and supervise the president’s performance of controversial official acts.
That was never going to fly. With presidents of both parties increasingly pushing the boundaries of their authority, with polarization at a historic level, with the number of federal crimes on the books growing at a steady clip, Dreeben’s dismissal of concerns about partisan prosecution isn’t credible.
Conservatives tend to take a darker view of human nature than the tidy vision of Justice Department irreproachability that Dreeben presented. So how might those justices have been reached? The Justice Department could have conceded that politicized investigations and prosecutions are a clear and present risk, but insisted that it’s simply not the justices’ job to put a stop to that tendency. It could have made an argument from judicial minimalism — that the court should let the political branches do their worst.
Justice Ketanji Brown Jackson made a better version of this argument than Dreeben. She called “prosecutorial abuse” a “very legitimate concern.” But she suggested that if one administration prosecutes its rival, it is more likely to face prosecution itself. “If they go after the former guy,” she said, “soon they’re going to be the former guy.”
In other words, political deterrence might put a lid on partisan legislation. That vision — that the parties will explore ways to use the law against each other, but will watch their step because of the risks when power changes hands — is a whole lot more credible than the portrait of Justice Department employees as legal divinities.
This is, paradoxically, a darkens view of politics than the one the conservative justices seem prepared to embrace. But it reflects political realism of the kind the Founders would have recognised. Justice Sonia Sotomayor similarly pointed out that if the existing checks on vindictive prosecution “completely” fail, “it’s because we destroyed our democracy on our own.”
A majority on the Supreme Court seems inclined to think some kind of immunity is necessary to nudge American democracy in the right direction. The best counter would have been that the fate of democracy belongs to the people and their elected representatives, who can destroy it if they are determined to — and that when the Constitution is silent, the Supreme Court should stay out of the way.
