Former President Trump has promised repeatedly that, should he retake office, he will assume dictatorial powers, if only on Day One, in order to launch a massive expansion of oil and gas drilling, among other things.1Precisely why Trump thinks he needs dictatorial powers to secure his goal of vastly expanded fossil fuel production is unclear. Crude oil and natural gas production have increased every year under President Biden after all without any express arrogation of executive power. Part of the answer may be that he aims to remove any legal hindrance to his determination to repay the fossil fuel industry for its anticipated contributions to his re-election efforts. In April, for instance, Trump reportedly pressed a roomful of leading industry executives to pony up a neat $1 billion in exchange for his “first day” commitment to terminate the Biden administration’s current freeze on new natural gas exports, allow additional oil leasing in the Gulf of Mexico, reverse current restrictions on drilling in the Arctic, and repeal existing climate regulations.
Now, with the Supreme Court’s July 1, 2024 decision in Donald J. Trump v. United States, Trump’s determination to discard inconvenient federal law — including the law of environmental protection — seems a less personally risky proposition. Clearly the prospect of a fully-unleashed Trump presidency motivated Justices Sonia Sotomayor and Ketanji Brown Jackson to issue their powerful dissents.
Turning to the decision itself, a divided (6-3) Court decided that the former President may well enjoy immunity from criminal prosecution for some or all of the acts for which he has been indicted on federal charges relating to the scheme to overturn the 2020 federal election. Going further, the majority held that all Presidents may enjoy either “absolute” or “presumptive” immunity from criminal liability for their allegedly criminal acts while in office, if their conduct can be fairly characterized as “official acts.”
Ultimately, the Court determined that it is for the federal courts – with itself, the Supreme Court, as final arbiter – to decide whether apparently criminal Presidential conduct can be subjected to prosecution. The majority’s stated central concern? To guard against an “enfeebling of the Presidency,” wherein the nation’s chief executive will be deterred by the threat of subsequent prosecution from “boldly and fearlessly carry[ing] out his duties.”
Driven by that fear, the majority erected what I think of as a three-bucket framework: Bucket 1: For conduct amountung to an exercise of “core constitutional power,” a President enjoys “absolute immunity.” Bucket 2: Where the conduct amounts to “official acts,” that is, an exercise of an official power, the President is presumptively immune from prosecution. Moreover, such immune acts, according to the majority, may not be used to prove motive in any criminal prosecution of a President’s other crimes. Bucket 3: A President’s wholly private conduct enjoys no immunity from criminal prosecution, though proof of such crimes may be hampered by the majority’s limitation on official acts evidence.
That is just as bad as it sounds, and it is baseless.
Justice Sonia Sotomayor, joined by Justices Kagan and Jackson, at p. 3 of their dissent
Did the majority really mean, as to Bucket 2, that, to quote Justice Sotomayor, “a President’s use of any official power for any purpose, even the most corrupt, is immune from prosecution”? That appears to be a reasonable reading of the majority opinion. Again, to cite Sotomayor, “[t]hat is just as bad as it sounds, and it is baseless.”
To understand just how baseless, one really needs to read Sotomayor and Jackson. Their ripping dissents laid bare the a-textual, illogical, ahistorical, and anti-democratic nature of the majority’s decision. I highly commend both of their statements to everyone, less because they foretell what now will become of our Republic than what they reveal about our nation, at this time, and the choices we now confront.
To understand just how baseless, one really needs to read Sotomayor and Jackson. Their ripping dissents laid bare the a-textual, illogical, ahistorical, and anti-democratic nature of the majority’s decision.
I wish that that there were video — or even simply audio — of Sotomayor and Jackson reading aloud their respective dissents (and, perhaps, along the way, skipping over those tedious citations). But if they exist, they are nowhere to be found; at least, I can’t find them. So I’ve read them aloud, on this 4th of July, 2024 — though without their caselaw references and notes that break up their flow. See below, and ignore the occasional sound of fireworks commemorating our nation’s inaugural struggle against absolutism.
I should point out one especially important portion of Justice Jackson’s dissent that is actually in one of her footnotes, that is, note 5. There she make a distinction so critical to the rule of law that I predict we will have occasion to return it time and again; so I reprint it here, nearly in full.
To fully appreciate the oddity of making the criminal immunity determination turn on the character of the President’s responsibilities, consider what the majority says is one of the President’s “conclusive and preclusive” prerogatives: ” [t]he President’s power to remove . . . those who wield executive power on his behalf. . . . While the President may have the authority to decide to remove the Attorney General, for example, the question here is whether the President has the option to remove the Attorney General by, say, poisoning him to death. Put another way, the issue here is not whether the President has exclusive removal power, but whether a generally applicable criminal law prohibiting murder can restrict how the President exercises that authority.
Justice Jackson at p. 10, footnote 5 of her dissent
Ultimately the majority in Trump v. the United States remanded the case “for further proceedings consistent” with its opinion. Judge Tanya Chutkan, of the federal court for the District of Columbia, likely will need to hold a hearing during this literally over-heated summer. Much still remains to be determined.
Footnotes:
- 1Precisely why Trump thinks he needs dictatorial powers to secure his goal of vastly expanded fossil fuel production is unclear. Crude oil and natural gas production have increased every year under President Biden after all without any express arrogation of executive power. Part of the answer may be that he aims to remove any legal hindrance to his determination to repay the fossil fuel industry for its anticipated contributions to his re-election efforts. In April, for instance, Trump reportedly pressed a roomful of leading industry executives to pony up a neat $1 billion in exchange for his “first day” commitment to terminate the Biden administration’s current freeze on new natural gas exports, allow additional oil leasing in the Gulf of Mexico, reverse current restrictions on drilling in the Arctic, and repeal existing climate regulations.