The Immunity Ruling
PLUS: at the bottom, a Biden-drops-out Rules Committee update.
It feels like it happened forty-five years ago, but, actually the big Supreme Court ruling on presidential immunity came out earlier this month! The following day, I posted perhaps the most aged-like-milk thing I’ve ever posted:
![May be a graphic of map, blueprint and text that says 'PATHWAYS FOR PROSECUTION AFTER DECISION IN TRUMP V. UNITED STATES SUPREME COURT'S JUST TRII SECURITY Type of Conduct Official Conduct vs. Unofficial Conduct Conclusive preclusive core constitutional authority? Yes Yes Prosecute No Absolute Immunity Examples: false electors Presumptive Immunity Possibly Ellipse speech No prosecution No use evidence Pose [any] dangers of intrusion the authority and functions the executive branch? Example: POTUS pressure on Department Justice investigations and prosecutions Yes No No prosecution No use as evidence Yes prosecution Yes use as evidence Example: pressure on President Mike Pence'](https://substackcdn.com/image/fetch/f_auto,q_auto:good,fl_progressive:steep/https%3A%2F%2Fsubstack-post-media.s3.amazonaws.com%2Fpublic%2Fimages%2F5d30f05d-d1ba-496d-908e-3feac443394e_1290x1467.jpeg "May be a graphic of map, blueprint and text that says 'PATHWAYS FOR PROSECUTION AFTER DECISION IN TRUMP V. UNITED STATES SUPREME COURT'S JUST TRII SECURITY Type of Conduct Official Conduct vs. Unofficial Conduct Conclusive preclusive core constitutional authority? Yes Yes Prosecute No Absolute Immunity Examples: false electors Presumptive Immunity Possibly Ellipse speech No prosecution No use evidence Pose [any] dangers of intrusion the authority and functions the executive branch? Example: POTUS pressure on Department Justice investigations and prosecutions Yes No No prosecution No use as evidence Yes prosecution Yes use as evidence Example: pressure on President Mike Pence'")
Naturally, the day after I posted this, the good people at Law & Liberty contacted me to invite me to submit a piece on the Immunity Decision. Of course, I always love writing for L&L, so I accepted without hesitation. Loper Bright, maybe I’ll get back to you someday!
Now that it’s done, I’m glad I ended up reading Trump v. United States. It was an important decision—just not the way I expected at first. With many thanks to L&L Associate Editor Rachel Lu, my essay ran today under the title, “An Attack of Judicial Pragmatism.”
Please read the whole thing, but here is the opening:
Given the hoopla, the most striking thing about Chief Justice John Roberts' majority opinion in Trump v. United States is how little it decides: Neither Congress nor an overzealous prosecutor can transform a president’s use of his removal power into a crime, since the Constitution makes the decision to fire an executive-branch officer the “exclusive and preclusive” prerogative of the President. That’s it. Trump is a huge win for President Andrew Johnson, but he’s dead.
Roberts (joined by all five of the conservative justices) sent the rest of Jack Smith’s complex indictment back to the D.C. Circuit Court of Appeals marked “Try again (and see me after class).” The 42-page opinion mentions lots of abstract “separation of powers principles,” but the principles are vague, and the Court declines to clearly apply them to any particular set of facts, whether actual (was President Trump entitled to immunity for organizing “alternate” electoral slates?) or hypothetical (would a president be entitled to immunity for ordering SEAL Team 6 to assassinate a rival?). The decision presents, at most, the first draft of a framework for presidential immunity that might someday be used to decide actual cases.
Though it decided so little, Trump was front-page news in every paper. President Biden called a press conference to denounce it, saying “any president… will now be free to ignore the law.” Most of this was misleading. Some was untrue. The legal effect of Trump v. United States has been blown far out of proportion.
On the other hand, the legal analysis in Trump v. United States is deeply troubling, because a lot of it does not appear to be grounded in, or even motivated by, the text of the Constitution.
Ooo! Spicy words! Let’s see if James can back them up!
Again, read the whole thing. L&L has no comboxes, so come on back here to yell at me in the De Civitate comment boxes if you disagree with what I have to say.1
My piece is running against another essay at L&L by Professor Adam Tomkins, also on immunity. I haven’t seen that essay yet, and am off to read it now, but I’m sure it will be interesting!
That’s all in the high and noble world of legal theory. Meanwhile, in the hurly-burly of the horse race, there have been some Developments:
Biden Drops Out / Rules Committee Update
I don’t want to spam your inbox today with multiple blogletters, so I’m slipping this update into the same post. (I would like a less “historic” week next week, please! There are other things I need to do in my life!)
The DNC Convention Rules Committee quietly announced its next meeting will be tomorrow, Wednesday, July 24, at 2:00 PM Eastern / 1:00 PM Central. Here is the livestream-in-waiting:
I will not be able to liveblog this one, because I can’t take the time off at work. Instead, I will right now offer you a very quick summary of what I think will happen, and then perhaps I will check in that night, when all the dust has settled, to tell you what actually happened.
On Friday, I wrote that the DNC Convention Rules Committee leadership was laying railroad track for Biden. I said this because the choices it was making would make an open convention effectively impossible. I also said that absolutely nothing that happened in the Rules Committee created any leverage against Biden.
The second thing there is still definitely true. Whatever leverage was brought against Biden to make him drop out, it didn’t come from the R.C. meeting on Friday. However, In light of what happened after Biden dropped out, I no longer think it’s quite correct that they were laying railroad track for Biden specifically. The R.C. was indeed laying railroad track against an open convention, but any presumptive nominee could make use of that railroad track.
Within six hours of Biden dropping out, Harris had become the presumptive nominee. She had cleared the field of her most dangerous potential rivals, received an overwhelming wave of endorsements, enjoyed the political support of the base (including relative to other options), and reaped massive fundraising rewards. I was falsely imagining that the Rules Committee had to choose between Biden and an open convention. In truth, the party could still get a non-Biden nominee without an open convention. All they needed was for Biden to voluntarily drop out before Thursday (the last day before the Rules Committee would have to meet) and for the donors, sitting politicians, and potential rivals to immediately agree on a replacement. Then they could just give the replacement the railroad they built for Biden, and present the whole thing to the actual delegates as a fait accompli (while still incoherently blaming Ohio).
“Luckily,”2 Biden dropped out on schedule, Sunday afternoon. The replacement was Harris, whose position was secure by Sunday night. The Rules Committee appears to have scheduled its meeting in response, first thing Monday morning.3 In retrospect, it seems very likely that the Rules Committee’s leadership was already aware that the DNC (not an open convention) would pick a successor if Biden dropped out; probable that they knew the anointed would be Kamala Harris; and plausible that they knew on Friday that Biden would drop out over the weekend and that they railroad tracks they were laying on Friday were for her benefit, not for his. (…which does make some of my analysis Friday look pretty stupid, in retrospect!) At this writing, I think Kamala has picked up the verbal support of a majority of the pledged delegates + superdelegates. They are not actually pledged or bound to her, since the candidate they were actually pledged to (Biden) has withdrawn and they can’t be re-bound, but it seems certain at this point that Kamala would win even under an open process, barring new developments (but see below about that risk).
What I expect to happen, then, is that leadership will persuade the delegates to go along with completing the railroad track and riding the rails to Coconut Town. The Rules Committee will:
Vote to approve a virtual roll call, starting (most likely) August 1 and concluding August 7.
Vote to approve the rest of the Call to Convention as-written (more or less). This will make it nigh-impossible for anyone to challenge Harris.
Ask some ineffectual questions about how someone else might get on the ballot, then give up.
The answer under the current rules is: the names on the ballot are at the discretion of DNC Chairman Harrison. The R.C. could change this, but, I predict, will not. Anyone who asks how it works will not get nearly so direct an answer from leadership.
Agree, in effect, to a virtual roll call ballot that has only two options on it: “Kamala Harris” and “Present.”
Kamala will then become the legal nominee on August 7.
The actual convention (in mid-August) will have no purpose and no legal significance.
Speaker Mike Johnson is apparently doing some saber-rattling about how he’s gonna sue today to prevent Harris from taking Biden’s place, but, as we discussed Friday, this is nonsense. He doesn’t have a leg to stand on, because Biden is not currently the legal nominee. Once the party has a legal nominee, however, those threats begin to have some real bite. After August 7, then, Kamala will be difficult or impossible to replace. Better still: after August 1, it will likely be difficult or impossible to stop the virtual roll call vote already underway.
This is good for Kamala, but risky for the party. Polls probably won’t fully price in Kamala’s entry into the race until right around July 31 / August 1. If she polls well against Trump, all the Democrats are happy and plans proceed. But suppose she polls poorly against Trump—as bad as Biden, or worse, or even just not that much better. Democrats will just be figuring that out as July ends… and, rather than giving themselves a chance to find a better candidate, who might have a better shot at winning, they will at that point be nearly locked in to Kamala. It’s not how I’d run my party, but the DNC (like the RNC) hates and fears one thing more than anything else: the possibility that their own members might try running things themselves instead of letting the National Committees handle it.
There may be another Biden-themed post tonight or tomorrow dealing with his departure and Harris’s entry into the race, but I’m not sure yet.
Bonus content, just because I want to justify the existence of this otherwise pure-self-promo post about my new offsite article:
I think my biggest regret about “An Attack of Judicial Pragmatism” is that I did not find just a little more time to praise Justice Sonia Sotomayor’s dissent. I called it “unusually Scalia-esque,” which is the highest praise I can give to a judicial opinion, but I’m not certain that I sufficiently conveyed that to the audience.
While it also deserved much of the criticism it has received (including from me, later on in the essay!), Sotomayor’s dissent did what the best Scalia dissents did: it laid bare the holes in the majority’s reasoning, described the Mack trucks that could be driven through those holes if the majority actually meant what it said, and communicated both the logical problems and the potential consequences clearly and colorfully to a lay audience.
When I watched how completely the media lapped up and rebroadcast Sotomayor’s concerns, usually without any caveats or even fully understanding what Sotomayor had said, I couldn’t help feeling a pang of jealousy. What if Justice Scalia, while he had been alive, had had not only his wit but a vast, uncritical, obsequious media at his disposal? He would have ruled the world.
But it is not Sotomayor’s fault that she has the media and Scalia didn’t, and it is particularly important for me to praise her opinions when they have some substance to them, because they are so rarely any good, and because it pains me to praise her.
I put this in quotes because, as of this writing, we still don’t actually no what happened. We have no reliable evidence of what made Biden drop out. Heck, we don’t even have sufficient evidence to prove that he dropped out! We may entirely ignore any text reports from the Times and the Post based on sources within the White House, since those are the very reporters who misled us for months about whether Biden was compos mentis. All we know for sure is that a letter purportedly from Biden was posted on Twitter, and that the President of the United States has not been seen since last Wednesday.
If that sounds unduly suspicious, my suspicion might have something to do with the fact that we just caught these exact people lying their faces off to the American people for years on end about the mentality and behavior of this exact President! I’m not sure why the major papers and/or the White House inner circle would want to deceive the American people about this, and my odds-on expectation is still that Biden delivers a speech (eventually) as previously announced.
Nevertheless, I think that, before we uncritically accept the claim that a major historical event just happened, we should demand at least the same amount of proof-of-life that’s required to do an Ask Me Anything thread on Reddit Dot Com!
I looked for it around noon and it was definitely up then. I didn’t check last night.
I hate when this happens: my team gives me the result I think I wanted, but in a manner I definitely didn't want...
I was wondering what you thought about the presidential immunity decision. Personally, I think you're far kinder to it than I feel. I think this was an incredibly bad decision; not only was it badly thought out, various justices completely betrayed their principles. The opinion is basically nonsense from an originalist or textualist standpoint. Roberts I don't think claims to be an originalist, so that's not an issue for him, but the others have to varying degrees, and this is the antithesis of such an opinion. The others in the majority went against their own avowed principles with this (Barrett was the least bad of them in this regard, admittedly).
Now, I went into this case skeptical on the claims of presidential immunity, even the lawsuit immunity from Nixon v. Fitzgerald. I found Charles C.W. Cooke's argument at National Review (https://www.nationalreview.com/2024/04/there-is-no-immunity-clause/) that there's simply no immunity very persuasive. But I thought maybe the majority could change my mind. Instead it largely just reinforced to me that the Supreme Court was just making stuff up.
I think this decision, while not as bad as Roe v. Wade on the whole, is even less based on the Constitution than that decision was. John Hart Ely memorably declared that Roe "is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be" and that applies even more here. At least Roe was able to point to part of the Constitution that supposedly justified a right to an abortion, which is more than this opinion did! The majority opinion says "True, there is no “Presidential immunity clause”". That right then and there seems like it should end the question unless it immediately follows it up with an explanation of what clause this can be found in. Instead the next sentence is "But there is no "separation of powers clause" either... Yet that doctrine is undoubtedly carved into the Constitution’s text by its three articles separating powers and vesting the Executive power solely in the President" which does not actually answer the problem; even if we were to suppose that the three separate articles implicitly gives separation of powers, no such thing can be said for presidential immunity. And I would say that separation of powers is found insofar as it gives explicit powers to the different branches and therefore the branches don't get powers not granted. Quite honestly, those two sentences seem all that is necessary to me to prove presidential immunity is nonsense, and they're not in the dissent, but the majority opinion! Again, even Roe was able to point to a part of the Constitution that supposedly gave right to an abortion, something this opinion seems unable to.
Also, on the "Seal Team 6" thing, I feel the criticisms I see of Sotomayor's invocation of it seem to largely miss the mark. People by and large point to the functional difficulties of the President doing so (as you do in your article), but that's not saying that immunity isn't given under the decision, merely that it is either impractical or that if a President is doing that, we're past the point where immunity matters anyway. The only person I personally saw who gave a real response to it was someone who asserted that the decision saying "The reasons that justify the President’s absolute immunity from criminal prosecution for acts within the scope of his exclusive constitutional authority do not extend to conduct in areas where his authority is shared with Congress" meant commanding the military didn't count because congress has some power over the military too; I have some issues with that, namely that the Constitution still indicates each separate exclusive power over the military, and more importantly if that was the case, Roberts could've just said that in response to the dissent rather than just dismissing it as extreme hypotheticals. Would've only taken an extra paragraph.
Now, you do say it's a "first draft" opinion, and while you seemed to be using this to say it could be developed later, it reminded me of how Akhil Amar on his podcast said the whole thing felt like an unfinished rough draft (I don't think he used those exact words, though), and that it seemed like the Supreme Court didn't bother to get the opinion together right because they rushed through it due to not wanting to spend an extra day or two fixing it up before going on their vacation. He really disliked it, too, and said it was one of the worst Supreme Court decisions during his lifetime, and possibly the worst; I wouldn't go that far, but I understand his sentiments (he discussed it in "Show 185").
So maybe the reason for the lack of addressing that point was just because they wanted to go on their vacations, but if that's the case it sure seems like they should've spent an extra day fixing it. The opinion is not only bad in its basic conclusions, it's bad in that it's hard to actually draw anything real out of those conclusions. I suppose this isn't necessarily the result of rushing... perhaps Roberts tried to sidestep various things to keep his majority together?
Granted, for my problems with the majority opinion, I have trouble with the other ones also. Barrett's concurring opinion is an improvement on the majority opinion, but still suffers from some of the same issues (it's actually puzzling she signed onto so much of the majority opinion given her concurrence seems to disagree so much with the reasoning, even if she mostly reaches the same conclusions). Thomas's concurring opinion did seem like it brought up some good points, but it makes him look like a hypocrite when he offers such an originalist/textualist argument while simultaneously signing onto an opinion that is practically the antithesis of that. And while I think the dissents got things more right than the majority opinion, it is annoying to see Sotomayor suddenly go so strongly originalist/textualist after rejecting that in so many other opinions. I also would've preferred it if the dissents had said that Nixon v. Fitzgerald was decided incorrectly, but perhaps they did not view that as necessary for the case.
Honestly, if one compares this opinion to Dobbs, it's almost like a bit of a mirror universe. The general reasoning the majority used in Dobbs should have led them to dissent in this one, and the general reasoning the dissent used in Dobbs should have led them to join the majority opinion! While I don't think anyone in the majority looks good in this specific case, when considered in the context of other cases I don't think any justices come out looking good.
Maybe there is some actually good argument for the existence of presidential immunity, but it's certainly not in the majority opinion in this case.
There's another issue with this opinion. Because the majority opinion is so (in my view) obviously forced, it just helps spread the narrative that the Court is just doing stuff for partisan reasons, with its 6-3 split divided among the parties of those who nominated the justices. I don't think most of the justices are doing that, but it sure makes it harder to make that case when we see opinions like this.
I know this is a lot of rambling on my part, some of it unfocused, but I've been wanting to post my general thoughts somewhere and thought this might be a good place.