afterwards Trump v. United States, I wrote a series of posts breaking down most aspects of the view into doctrinal issues (1, 2, 3, 4, 5, 6, 7, 8). My overall impression is that the decision was not premised on original public significance, but rather was a mixture of precedent, pragmatism and “traditionalism”. However, the response was shocking anger! this is next Roe v. Wade. We need a constitutional amendment to overturn it. We need to pack the Supreme Court! etc.
Never forget that most commentary about the Supreme Court is performative. Critics have a vested interest in making these decisions look much worse than they actually are. There really shouldn’t be too many surprises here.
First, Nickerson v. Fitzgerald It’s been on the books for decades. The decision established absolute civil immunity for all acts “peripheral” to the president’s duties. No one asked the court to reconsider Nickerson, so this is a precedent. During oral arguments, Justices Jackson and Sotomayor repeatedly tried to explain why civil immunity made sense but criminal immunity did not. But most people disagree. Crucially, the court found that it made no sense to provide immunity to: civil Suitable, but not suitable criminal Prosecution. In fact, as I noted, the risk of criminal prosecution of the president is bigger than the risk of civil litigation. If the court refuses to distinguish between civil and criminal proceedings, then it is natural that the absolute immunity recognized by the court Nickerson will apply to criminal cases trump card. None of this is surprising.
Secondly, once the court recognizes that “core” powers enjoy absolute immunity and constructive immunity for other acts, the court must take Some test. this fitzgerald The courts’ “peripheral” tests have never been particularly unhelpful. Instead, Chief Justice Roberts borrowed Blassingame v. Trump, which is a precedent for DC circuits. The case involves a civil lawsuit filed against President Trump on January 6:
For these reasons, the immunity we recognize extends to the “periphery” of the President’s official duties, covering actions that are “not clearly or clearly beyond the scope of the President’s duties.” [his] authority. Blassingame v. trump card87 F. 4th 1, 13 (CADC 2023) (internal quotes omitted); see fitzgerald457 US at pp. 755-756 (noting that we “refuse to draw finer functional lines than history and reason support”).
given fitzgeraldand how lower courts apply fitzgerald, courts will have to apply some test to determine immunity. The court provided some guidance to lower courts. I don’t know how helpful this will be, but the courts are stepping into uncertain territory. Is the framework so unreasonable?
Third, I think most critics of the decision still believe the law can constrain populist presidential candidates. Can’t. Alvin Bragg, Jack Smith, Fannie Willis, etc. None of them had any influence on Trump. The Wall Street Journal summed it up well:
None of this is a defense of Trump’s actions, or support for paying off porn stars, trying to overturn the 2020 election, or refusing to help a beleaguered Congress on January 6. Trump’s biggest opponents are often his best assets. They are convinced he won in 2016 by colluding with Russia and that special counsel Robert Mueller will find out the truth. They impeached him twice. Mr. Trump has been through it all.
Believing this is an illusion any The tests Chief Justice Roberts can administer will control this or any other president. The law only applies here.
Everyone should take a deep breath. this only The way to defeat Trump is at the ballot box. This was true in 2016, this is true in 2020, and it will be true in 2024.
