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Constitutional Scholars Defend SCOTUS Immunity Ruling amid Leftist Outrage

July 2, 2024

Fresh from overturning the Chevron deference doctrine last week, the U.S. Supreme Court once again waded into controversy on Monday with a landmark decision in Trump v. United States, declaring that the U.S. President’s official acts are protected from prosecution by immunity. While the decision sparked backlash and meltdown among opponents of former President Donald Trump, constitutional experts and conservatives are hailing the ruling as “sensible.”

Trump’s former Attorney General Bill Barr dismantled left-wing talking points in a Monday interview. “This went up to the court in a very abstract posture, which is the government’s very broad assertion that there is no immunity whatsoever,” Barr explained. “What the court’s saying here is, ‘No, there’s absolute immunity when he’s acting directly under the Constitution, carrying out a function under the Constitution, there’s presumptive immunity when he performs an official act and the government has the burden of showing it can prosecute him for that without impairing the executive function, and finally there’s no immunity for unofficial or private acts.’”

“The practical effect of this is that the district court is going to do what it really should have done at the beginning, what the government really should have had it do, which is do the analysis so the facts are going up to the Supreme Court,” the former AG continued. “So as a practical matter, there’s not going to be a trial of this case before the election.”

Barr also addressed Justice Sonia Sotomayor’s dissenting opinion, which was joined by Justices Elena Kagan and Ketanji Brown Jackson and has spurred much of the left-wing backlash against the majority’s decision. Barr said that Sotomayor’s dissent “unfairly portrays the majority opinion.” He continued, “The question is what’s the function being performed, what’s the authority being used, not what instrument is being used. So for example, the president can direct that a case be dropped and that’s part of his constitutional authority.” Pointing specifically to hypothetical scenarios enumerated by Sotomayor, Barr added:

“But he cannot accept a bribe to do that because that’s receiving a bribe, he doesn’t have authority to receive a bribe. Another example would be he has the right to go and tell the Department of Justice to go investigate something, but an example used by Justice Sotomayor was that, ‘Oh, he can fabricate evidence, give the evidence to the Department, and tell them to use that to indict them.’ He doesn’t have authority to fabricate evidence, that’s not carrying out an executive function. And the worst example, I think, the one that makes no sense whatsoever, is the idea that he can use SEAL Team Six to kill a political opponent. The president has the authority to defend the country against foreign enemies, armed conflict, and so forth. He has the authority to direct the justice system against criminals at home. He doesn’t have authority to go and assassinate people. So whether he uses the SEAL team or a private hitman, it doesn’t matter, it doesn’t make it a carrying out of his authority.”

Barr observed, “So all these horror stories, really, are false.” Responding to left-wing claims that the Supreme Court effectively gave a future Trump presidency carte blanche to violate the law with impunity, Barr stated, “I would say what the Chief Justice said in the [majority’s] opinion, which is that the Supreme Court has to write a timeless opinion, an opinion that covers all situations in the future and that will be good for the country over the long haul.” He added, “They can’t write opinions tailored to the particular exigencies of the moment.” He concluded, “They have said that even official acts can be prosecuted if the government can show — under the circumstances, the particular facts of the case — that it would not impair the executive function.”

Once Trump’s top legal officer, Barr further noted that there is no “acute risk” of the former president carrying out a personal vendetta against political opponents in a potential second term. The former AG noted that checks and balances built into government institutions would prevent Trump from “weaponizing” federal entities, but added that he does not believe Trump to be seeking personal revenge. “He had a very successful first term, he got a lot of things done against a lot of tremendous opposition,” Barr said. “I hear a lot of rhetoric about him going after his enemies and so forth, but I don’t see any specifics as to that happening during his first term. … I think the threat to democracy and the threat to the United States and the most damage would be done by four more years of Biden [as opposed to] Trump.”

Carrie Severino, president of the Judicial Crisis Network (JCN), largely agreed with Barr’s legal analysis in a lengthy social media post. She observed that the court’s ruling “crafted a sensible line regarding immunity that balances the historical presumption that presidents are subject to some potential liability for their actions with the president’s need to be able to exercise executive power under Article II without courts second-guessing his judgment.” Also responding to left-wing outrage, Severino noted, “This case may undercut Biden’s attempt to use government prosecutors to attack his political rival, but in the long term it will benefit him as it does Trump by shielding him from some liability for his own actions in office.”

Senate Judiciary Committee member John Kennedy (R-La.) also rebuffed left-wing vitriol directed at the court’s ruling. “I would make three points: Number one, remember it was the Justice Department that overreached and asked for this opinion and the Justice Department got it, they got it good and hard,” Kennedy said in an interview. “Number two, you didn’t have to be Oliver Wendell Scalia to see this opinion coming. It was predictable because it’s the law. The Constitution and common sense demonstrate that the Justice Department can’t prosecute a president, not criminally, for an official act. It can for a personal act.”

“The third point I would make … remember, the Supreme Court sees what we see. President Biden is losing this election. President Biden has neurodegenerative disease. He practically invents a new language every time he speaks,” the senator continued. “His family has serious legal problems. His staff, which is running the country, is more concerned about gas stoves and whether a man can breast-feed than it is about inflation or crime or the border or national security, and that’s why the president’s losing.”

“This case was political from the get-go,” he concluded. “It was designed to help President Biden, and I think the United States Supreme Court today said, ‘Look, we don’t get involved in politics, we don’t want to get mixed up in this.’ That’s why it was such, in my opinion, an anodyne, predictable decision.”

A more surprising, though tacit, defense of the Supreme Court’s opinion came from CNN’s senior legal analyst Elie Honig, a former U.S. prosecutor. Contradicting left-wing talking points, Honig noted that the court rendered the president “immune, in many circumstances … but no president or former president has all-encompassing, ‘blanket’ coverage.” He continued, “Justice Sonia Sotomayor argues that the court’s ruling would permit a president to order an assassination without consequences, but I respectfully dissent from that dissent. I don’t see any way a court concludes that such a plot would be an ‘official act’ within the scope of the job.”

Honig also pointed out that the case has been remanded to the district court to determine which acts alleged in the indictment against Trump are official and subject to immunity and which are unofficial and therefore open to prosecution. That decision itself, the former prosecutor noted, may be appealed to the Supreme Court before any trial itself takes place, rendering the possibility of a pre-election trial “zero,” in Honig’s words.

Special Counsel Jack Smith’s “indictment will look like Swiss cheese once all the official acts are removed,” Honig predicted. He added, “Fulton County district attorney Fani Willis’s election-subversion indictment was already circling the drain on its own demerits, and now it faces the same immunity problems as Smith’s case.” Honig anticipated that all four prongs of the lawfare campaign against Trump may now be substantially impaired, even the Manhattan jury’s conviction of Trump in May on charges of falsifying business records. “Watch for Trump to argue that some of the evidence admitted against him — including conversations he had with White House adviser Hope Hicks, while he was in office in 2017 — is entitled to immunity and was wrongly admitted at trial,” the attorney wrote.

In addition to Sotomayor’s controversial dissenting opinion, a number of high-profile Democrats have voiced their rejection of the court’s ruling. Incumbent President Joe Biden’s campaign issued a statement claiming that the court’s “ruling doesn’t change the facts,” reiterating the allegations made against Trump in the indictment brought by Biden’s own Justice Department. Former U.S. House Speaker Nancy Pelosi (D-Calif.) said on Monday that “the Supreme Court has gone rogue with its decision, violating the foundational American principle that no one is above the law. The former president’s claim of total presidential immunity is an insult to the vision of our founders, who declared independence from a King.” She added, “The Supreme Court placed itself on trial with this decision — and its credibility has been further diminished in the eyes of all those who believe in the rule of law.”

Rep. Alexandria Ocasio-Cortez (D-N.Y.) announced on social media that she intends to file articles of impeachment against members of the court over the decision. “The Supreme Court has become consumed by a corruption crisis beyond its control,” she claimed. “Today’s ruling represents an assault on American democracy. It is up to Congress to defend our nation from this authoritarian capture. I intend on filing articles of impeachment upon our return.”

S.A. McCarthy serves as a news writer at The Washington Stand.