With the closing of the 2023-2024 Supreme Court term, it is critically important for Vineyarders to know who came out on top and who did not. The biggest winner was the six-member conservative majority that dominated. In terms of litigants, the biggest winner is clearly former President Donald Trump in his challenge to end several criminal cases that he has faced and will potentially face in the future.
Distinguishing official from unofficial acts by a President will be terribly difficult so it appears that Presidents, past and future, will escape prosecution from most, if not all, of their actions during their time in office. Vineyarders should be aware that this will fundamentally change the foundation democratic principle that no person is above the law.
Former President Trump was indicted for attempting to overthrow the results of the 2020 presidential election, especially his participation in the events of January 6, 2020, when, at his beckoning, a large crowd broke into the Capitol building and destroyed property and documents in an attempt to halt the congressional count of electoral votes. Several police officers were beaten, and seven people, including police officers, were killed.
The Court’s six-member conservative majority, led by Chief Justice John Roberts, ruled that Presidents do possess immunity from prosecution for acts within their core constitutional duties like issuing pardons and those on the outer perimeter of those duties like communicating with the American people.
The indictment stated that Trump conspired to overturn the election by knowingly spreading false claims of election fraud to obstruct the collecting, counting, and certifying of the electoral vote. The indictment specifically laid out five primary means he tried to overturn the 2020 election, all of which may be in jeopardy because the Court’s ruling is unclear which of these actions are official, which are unofficial.
- “He used false claims of election fraud to try to persuade state legislators and election officials to change electoral votes from Biden to Trump.” But Roberts wrote that the President under Article II must “take care that the laws be faithfully executed,” and he wrote that Trump tried to ensure a fair and free election.
- “He organized fraudulent slates of electors in seven so-called battleground states like Wisconsin and Pennsylvania to send false certificates to the Vice President and other government officials to be counted at the certification proceeding on January 6.” But the chief justice wrote that Presidents have wide latitude to communicate with whomever they wish, including electors. He added that such communications may not fall precisely into a President’s official functions but lie on the outer perimeter.
- “He tried to use the Justice Department to conduct sham election crime investigations and to send a letter to the targeted states that falsely claimed that the Justice Department had identified significant concerns that may have impacted the election outcome.” But Roberts wrote that communicating with Justice Department officials, even suggesting phony investigations, is part of his official duties as President.
- “He attempted to persuade the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results. When that failed, on the morning of January 6, he repeated knowingly false claims of election fraud to his supporters, falsely told them that the Vice President had the authority to alter the election results and directed them to the Capitol to obstruct the certification proceeding.” But Roberts ruled that working and communicating with the Vice President is an official duty of any President.
- “The large and angry crowd gathered at the White House violently attacked the Capitol and halted the proceeding while Trump exploited the disruption by redoubling efforts to levy false claims of election fraud and convince Members of Congress to further delay the certification.”
But the chief justice wrote that “most of a president’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities.”
Justice Sonia Sotomayor dissented along with two liberal colleagues. “Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop. With fear for our democracy, I dissent.”
Although she joined most of the majority opinion, Justice Amy Coney Barrett thought the Supreme Court could and should determine precisely what are official and unofficial acts.
As an example, she laid out this scenario related to the second charge in the indictment. “Take the President’s alleged attempt to organize alternative slates of electors. In my view, that conduct is private and therefore not entitled to protection. The Constitution vests power to appoint Presidential electors in the States. And while Congress has a limited role in that process, the President has none. In short, a President has no legal authority–and thus no official capacity–to influence how the States appoint their electors. I see no plausible argument for barring prosecution of that alleged conduct.”
The Court remanded (returned) the case to the lower courts to determine whether Trump’s acts alleged in the indictment were official or unofficial. But if the Court had followed Barrett’s wise proposal that the justices themselves could have figured out the difference between official and private acts, the criminal indictments against the former President could have gone forward to “a speedy trial” and possible conviction.
Jack Fruchtman, who lives in Aquinnah, is preparing a fourth edition of his book, “The Supreme Court and Constitutional Law.”
