On MSNBC, Rachel Maddow warned that the Supreme Court had just unleashed death squads to roam our streets. CNN legal analyst Norm Eisen announced that murder was now legal (at least for presidents), while others predicted that the ruling on presidential immunity would invite “tyranny.”
Anyone reading the coverage would conclude that James Madison has been replaced by John Wick in a new “Baba Yaga” Republic.
President Biden fueled the sense of panic in an address that repeated widespread false claims about the decision in Trump v. United States. Biden told the country that “for all practical purposes, today’s decision almost certainly means that there are virtually no limits on what a president can do.”
That, of course, is not true.
I have long opposed sweeping presidential privileges and powers. I have long argued that a sitting president can be criminally charged in office. But the portrayal of this Supreme Court opinion by the left and the media is wildly off base.
As it has in the past, the court adopted a three-tiered approach to presidential powers based on the source of a presidential action. Chief Justice John Roberts cited Youngstown Sheet and Tube Co. v. Sawyer, in which the court ruled against President Harry Truman’s takeover of steel mills.
In his famous concurrence to Youngstown, Justice Robert Jackson broke down the balance of executive and legislative authority between three types of actions. In the first, a president acts with express or implied authority from Congress. In the second, he acts where Congress is silent (“the zone of twilight” area). In the third, the president acts in defiance of Congress.
In this decision, the court adopted a similar sliding scale. It held that presidents enjoy absolute immunity for actions that fall within their “exclusive sphere of constitutional authority” while they enjoy presumptive immunity for other official acts. They do not enjoy immunity for unofficial or private actions.
The proceedings in Manhattan after the decision belie the claims that a president can now commit murder with impunity. Judge Juan Merchan is likely to find that Trump’s conduct in office in approving payments related to Stormy Daniels fall into the third, unprotected category. While some of the testimony may have intruded into protected areas, most experts anticipate that the court will reject dismissal of charges under an absolute immunity claim. Judges in the other Trump prosecutions will be performing the same inquiry, though the impact is likely to be much greater in the case of the special counsel in Washington, D.C.
In fairness to critics, Justice Sonia Sotomayor’s dissent gave credence to their hyperbolic theories. Sotomayor wrote: “The president of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s SEAL Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”
The dissent ignores parts of the majority opinion that expressly refute such claims. For example, the majority discussed how prosecutors could present evidence in a bribery case that a president “allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act.” The prosecution can overcome the presumption of immunity with such evidence.
Indeed, the majority stated that Trump’s alleged “private scheme with private actors” to create alternative slates of electors “cannot be neatly categorized as falling within a particular presidential function.” If that is established by the trial court, then Trump’s actions would not be protected by any sort of immunity.
In defining official functions, the Court referenced constitutional and statutory authority. It also recognized that a president must be able to speak to the public on matters of public interest, as Trump did on Jan. 6, 2021. While some of us believe that Trump’s speech was entirely protected under the First Amendment, the justices suggested that it was also protected as a matter of immunity.
That is a far cry from a green light for death squads. The idea that Trump could not order a slate of fake electors but could order a slew of political assassinations finds little support in the actual opinion.
Sotomayor is suggesting that the president could just declare that killing an opponent is in the national security interest. However, various laws contradict the claim that such acts are left to the discretion of the president. Not only would the military likely refuse such an unlawful order, but no court would consider it a core constitutional function.
The opinion draws lines with ample protection for presidents. The court cited opinions and practices going back decades for such breathing space.
Ironically, Biden’s hyperbolic account of the court’s opinion only serves to highlight the decision of former President Barack Obama and his vice president, Joe Biden, to kill an American citizen, Anwar al-Awlaki, in a drone attack without a charge, let alone a conviction.
Former Attorney General Eric Holder announced the Obama administration’s “kill list” policy to a group of lawyers and judges at Northwestern University Law School and received not condemnation but applause. Under Holder, the Obama administration fought every effort of the al-Awlaki family to seek information on the killing and insisted that courts had no role to play in such cases.
Yet, in the wake of the immunity decision, Holder expressed shock at the implication of the presidential power.
Could Obama and Biden be charged with murder for what they did? Most say no, because they were acting in fulfillment of their national security authority. If so, could they simply declare a political opponent to be an enemy combatant? They actually did maintain, years before this Supreme Court opinion, that such a decision was left to them and figures such as Holder.
I likewise represented the House of Representatives in successfully challenging Obama’s spending billions under the Affordable Care Act that had not been approved by Congress. I also represented House members who contested Obama’s undeclared war in Libya. Could he be criminally charged for those actions?
Likewise, Biden as president has been repeatedly found to have violated the Constitution, exercising racial discrimination and seeking to excuse billions in debt illegally.
The court was trying to find a middle path in addressing such controversies. In doing so, it rejected the extreme arguments of both the Trump team and the lower courts.
Putting aside the three-tiered approach, even a finding of presidential immunity does not mean that, as Biden falsely claimed, “there are virtually no limits on what a president can do.” It only concerns when a president can be personally charged. Federal courts can enjoin presidents from unlawful conduct, Congress can investigate presidents under oversight authority, impeach them and remove them from office.
The decision does not bar any and all prosecutions of presidents. It is still true, as stated by Alexander Hamilton in Federalist No. 65, that presidents remain subject to the criminal justice system. After impeachment and removal from office, he stressed, the president ”will still be liable to prosecution and punishment in the ordinary course of law.”
The opinion delineated those areas and evidence that may be barred from prosecution while allowing that prosecution is possible in other cases.
That nuance is lost in our current political environment. Biden and his allies spent months claiming that democracy will end and gay people will simply all be “disappeared” if he is defeated. So, there was admittedly little room left to escalate his rhetoric aside from death squads and a government based on a political “Assassin’s Creed.”
After all, these finer constitutional points are not nearly as riveting as the image of death squads roaming our streets. However, to paraphrase Mark Twain, the reports of democracy’s death are greatly exaggerated.
Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School.