The Supreme Court’s Villainous Ode to Untrammeled Presidential Power

The Supreme Court’s Decision in Trump's "immunity" case is a patent renunciation of demoracy and liberty and gives fascism a firm foothold in American Law and Government.

By

David Gottfried

As the title of this essay asserts, the Supreme Court is destroying American liberty, and its most recent, vehement salvo was its wholly unprincipled decision on Trump and Presidential immunity.     If you have read news stories in our better periodicals, you have only glimpsed the tip of the iceberg.  Most news coverage reports that the decision ruled that for some acts Trump will be immune, for other acts he will not be immune.    .  However, as the decision and Sonia Sotomayor’s dazzling dissent demonstrate, most of the acts which at first blush seem not to give rise to immunity will confer immunity through the deft contortions of logic effectuated by the Court.

This decision, it appears, attempts  to give fascism more than a patina of legal respectability.  It seems bent on giving fascism a firm legal footing in the “land of the free and the home of the brave.”   

Fascists are consummate liars, and the Court’s lies are part of what makes the Court’s decision so sickeningly fascistic.   Of course, legal opinions are for the most part interpretations, and interpretations, no matter how much you dislike them, cannot be deemed factual lies.   However, the Court’s decision is so adamant in its desire to camouflage crime, and relies on such feeble and foolish arguments to arrive at its completely implausible conclusions, that I can’t believe the Court believed what it said in its decision.  I believe that the Court simply wanted to get Trump off the hook and composed a decision of dung to achieve its criminal purpose.  It is as if the Court had toppled the statue of liberty and had shoveled manure into Lady Liberty’s mouth.

Most of my arguments are culled from Justice Sonia Sotomayor’s sagacious and spirited dissent.  However, a couple of the  arguments posited in this essay are derived from legal research I conducted many years ago.        

Without further ado, the following  proves that the Court’s very well written and erudite decision is utter manure:

General Constitutional and Historical Reasons Rebuking the Court’s Decision

1)  The Court would have us believe that the Constitution, and the Founders, were silent on the issue of Presidential immunity, but 6 specific factors and incidents, from the constitution’s text  and the colonial period, demonstrate that the founders were aghast at the notion that the President could evade the law in the manner of King George the Third, whom we had just waged a revolution against. 

The conservatives on the Court have always prided and praised themselves for their ferocious fidelity to the text of historical documents.  I suppose fidelity to text flies out the window when they have but one overriding objective:  Exonerating their favorite crook:  Mafia Don Donald Trump.  

A) The Constitution grants limited immunity to federal legislators in some instances.   Therefore, the framers of the constitution were aware that they could grant some immunity to the President.  But they did not. We must conclude that the framers flatly declined to give the President any immunity. 

B) When the Constitution was drafted, some state Constitutions gave governors limited immunity.  If the framers wanted to give the President immunity, they could have written it into the constitution.

C)  The impeachment clause of the Constitution provides that after a president has been impeached and convicted by the Senate, he can be prosecuted for breaking the law.  This flatly rebuts the proposition that presidents have any immunity.

D) Founding Father Alexander Hamilton said the President would not enjoy immunity because he was not to reign over us like a haughty king.

E) Constitutional Convention Delegate Charles Pinckney said that delegates to the  constitutional convention believed that no subject had been more abused than privilege and were in favor of granting special privileges and immunities only sparingly if at all.      

F)   Although the majority opinion says, on innumerable occasions, that Presidents are immune for any official acts they discharge,  Founding Father James Wilson thought otherwise, holding that federal officers who use their official powers to commit crimes must be prosecuted.  

2) Trump’s claim of Immunity is Barred by the Doctrine Against Inconsistent Positions.

This argument is my own.  I discovered this underused legal doctrine, which penalizes the use of inconsistent positions, many years ago.  It works like this:  

If in lawsuit number one, you make argument A and you win, then in lawsuit number two, you are precluded from making an argument which is the negative of Argument A.   For example, if in lawsuit number one you win by saying the traffic  light was green, then you are precluded from saying the traffic light was red in lawsuit number 2.  

When Trump was president,  his counsel aborted efforts to impeach  Trump by arguing that Trump could be prosecuted after he had left office.  Because Trump’s counsel saved Trump’s sorry ass from impeachment by arguing that he could be prosecuted after he had left office, they cannot argue immunity now.    

The record is quite clear:

“Indeed, Trump’s own lawyers during his second impeachment trial assured Senators that declining to impeach Trump for his conduct related to January 6 would not leave him “in any way above the law.” 2 Proceedings of the U. S. Senate in the Impeachment Trial of Donald John Trump, S. Doc. 117–2, p. 144 (2021). They insisted that a former President “is like any other citizen and can be tried in a court of law.” Ibid.; see also 1 id., S. Doc. 117–3, at 339 (Trump’s impeachment counsel stating that “no former officeholder is immune” from the judicial process “for investigation, prosecution, and punishment”); id., at 322–323 (Trump’s impeachment counsel stating: “If my colleagues on this side of the Chamber actually think that President Trump committed a criminal offense . . . [a]fter he is out of office, you go and arrest him”). Now that Trump is facing criminal charges for those acts, though, the tune has changed.”¹

The specific ways in which the Court’s decision is illogical, unjust and abhorrent to American Jurisprudence

3)  The Court’s Decision is based on an interpretation of Fitzgerald v. Nixon that is so fanciful and farfetched that I am sure that when the reactionary justices are alone, they laugh at how they suckered the American people with reasoning that was a homely hunk of hogwash.

In Fitzgerald v Nixon, an airplane pilot sued Richard Nixon, for lost pay, because a reorganization of some government departments resulted in the loss of his job.    

The Court dismissed the suit, holding that Presidents cannot be liable to individuals on the grounds that  their acts, as President, caused economic loss. 

Very simply, Presidents make lots of decisions that can cause lots of economic losses.  For example, if the President hires an inflation hawk as Chairmen of the Federal Reserve, and the discount rate  is hiked, a recession may ensue and two million workers might be unemployed.  Can we let 2 million lawsuits against the president proceed.   Of course not.   The President would have no time to do his job if he had to contend with 2 million suits for lost wages.   (And, incidentally, Trump is not president now and he has plenty of time to litigate a large panoply of suits.)

Since there are 300 million Americans, most of whom could conceivably  lose money because of presidential actions,  we simply cannot let presidents be sued for damages for common economic loss.  By contrast, the suit against Trump is a criminal prosecution and criminal prosecutions can only be brought by  a select and relatively small group of people, such as district attorneys.  The Supreme Court didn’t bother to tell you this in its decision. 

Also, in Fitzgerald v Nixon, the Court held that we must balance the interests of protecting the president, and the time he has to devote to his job, with the interest of whoever it is bringing the suit. In the case of Fitzgerald, the claimant was one individual with a claim for money damages.   In the case of the United States v Trump the claimant is the American people seeking a redress of grievances for a wrong that is massive and menacing:    An attack on our most treasured and bedrock of Democratic traditions:  The right of the people to elect their leaders, a  right than cannot be  rescinded because a noxious, toxic president revels in breaking the law by threatening to have his vice president lynched, by inciting Nazis and fellow travelers of Nazis to riot at the Capital (less than one hour before the riot began, Guiliani exhorted the mob to give us “trial by combat”), by composing sham slates of electors in battleground states, by demanding that state officials, such as the secretary of state of Georgia, manufacture extra votes, by threatening to use the military to impound voting machines across America, and by inciting his supporters to make countless death threats to public officials who tried to tally the votes honestly.

4) The Decision’s Perverse Exaltation of Presidents who wield brisk and terrifying power.   

 The Court’s decision repeatedly insisted that we want and need Presidents who act boldly and unhesitatingly, and that Presidents will be afraid to be bold if they may be sued for their actions. Hence, Presidents must be immune for their official acts, no matter how foul or fetid.   

However, the Court’s speculations have no  support in American history or law. 

The Supreme Court opined that if Presidents feared suit,  they wouldn’t have the gumption to behave like the Mussolini or Stalin of the Court’s nightmarish, febrile fantasies.  Perhaps the Court forgot that neither Mussolini nor Stalin were American. Perhaps the Court should heed the longstanding American demand for a limited and unobtrusive government. 

 I know of nothing in the constitution, or in any statute of the United States Congress, which lionizes imperial, imperious presidential power.   Furthermore, many historians and jurists have stressed that the Federal government is a government of limited power. 

It was always understood that Congress could not simply enact a statute because it thought it made sense; rather, it could only enact a statute if it furthered one of the specific duties Congress was charged with managing.   Since the President was the chief executive of the federal government, the President’s powers were limited as were the Federal government’s. 

Indeed, President Calvin Coolidge, who was known for sleeping about 12 hour per day, thought his somnolescence  was salubrious because in his conservative view, the less a president did, the better the country would be. 

Actually, conservative republicans had been the greatest champions of an impotent or mousey presidency, and it seems peculiar that conservative justices have taken a sudden liking for Presidents who, in the words of the “Battle Hymn of the Republic,” wield a “terrible, swift sword.”  But then again today’s justices are not really conservatives; they are, perhaps, more properly labeled fascists.   And perhaps they have forgotten that the “terrible swift sword” of that stellar civil war anthem belonged to G-d, not to a bloated, bellicose ex-president with delusion of grandeur.  

B)  We want many professionals to act boldly and unhesitatingly, but we do not curb their liability to suit because we fear that the prospect of litigation will deter decisive action.

Suppose a surgeon is operating on an aortic aneurism.    Plenty of things can go wrong in the course of the operation.  For example, in the midst of surgery, the patient might suddenly have a stroke.  If  a stroke transpires, we want the surgeon to act boldly and unhesitatingly in a manner commensurate with the grave medical emergency.  Do we make the surgeon immune from liability on the grounds that the possibility of a lawsuit might hinder the requisite measure of boldness.   Of course, not.   Likewise, airline pilots must act boldly and unhesitatingly if another aircraft swerves into their path and threatens the 200 passengers on the plane.  Taxicab drivers must act with the utmost dispatch if they confront hoodlums who threaten them with a  gun.   However, neither airline pilots nor cab drivers are granted any leniency or immunity from suit.  However, the right wing, while preaching austerity, severity and constant accountability for most Americans, believes Presidents should be treated with kit gloves.      

5) The Court believes that anything that Trump did while he was acting in an official capacity is immune from prosecution,  and the Court makes the word official a linguistic cancer,  expanding the term to include private, criminal conduct.

The Court ruled that when the President  is acting in an official capacity, and when he exercises  power that is  exclusive  to the president (meaning that no other parties can exercise that power), the president  is absolutely immune from prosecution.  

For example, the Court noted that the Constitution gave the president the right to fire his attorney general and that no one else in government had the power to fire the attorney general.

But then the Court makes a gigantic and wholly unprincipled leap:  The Court said that Trump has an unfettered right to do anything he wants to do with or to his attorney general.    Therefore, Trump is immune from claims that he coerced the attorney general to make unfounded claims of electoral fraud and threatened to fire the attorney general if he did not accede to his demands.

Let’s compare the Supreme Court’s position with elementary rules regarding the guardianship of  children and realize just how malignant this Supreme Corut is. 

A parent, or a guardian, has the right to determine what a child shall eat for dinner and when that child shall go to bed.   Although the parent or guardian has  certain supervisory powers, his powers are not untrammeled, and the parent does not have the right to sodomize his child.      Likewise, although Trump has certain supervisory powers over the attorney general, and may be the only official who can fire him, Trump does not have the right to make the highest law enforcement officer of the land his criminal stooge.    However, the Supreme Court cedes to Trump such criminal authority.  

The Court’s thinking is screwed up on some very basic level as it believes that because the constitution gives the President the right to fire the attorney general that automatically must mean that the President can fire the attorney general in furtherance of a criminal scheme to abort the lawful transition of presidential power.  

6) In expanding the domain of official acts, or acts immune from prosecution, the Supreme Court was even more Pro-Trump than Trump’s counsel.  

In oral argument, Trump’s counsel conceded that if Trump told private citizens to threaten election workers, to foment fraudulent claims of theft and the like, these acts would be unofficial acts and not immune from prosecution.   However, the Supreme Court said that even though these acts might seem unofficial, they may be so closely interrelated with official acts that they must therefore be deemed immune from criminal sanction.

7) The Supreme Court Transforms Unofficial Acts into Official Acts by Ruling that we Cannot consider motivation in determining whether acts are official or unofficial --- and the Court thereby resembles the Blind Commissioner of  Bob Dylan’s “Desolation Row.” 

There is a very straightforward and sensible way to determine whether an act was official or unofficial.   If an act was committed to buttress the well-being of the United States, then it should, perhaps, be deemed official and immune from prosecution.   If, however, an act was committed to aggrandize the power and interests of Donald Trump, then it should not be deemed official and worthy of special immunities.

Therefore, we should examine the motivation for the commission of the acts that are the subject of this criminal prosecution.  That’s how we would resolve matters if the Judges at issue were sane and not corrupt beyond measure.  

Indeed, motive is usually very relevant and is examined in lawsuits.     For example, there are various gradations in murder charges, and the more heinous charges are invoked when the criminal’s “mens rea,” or criminal intent, is more odious.  Likewise, if someone kills another and pleads self-defense, we obviously want to know the motive, i.e. did he commit the killing in self-defense.    

However, the Supreme Court held that we cannot examine Trump’s possible or actual motives in determining whether he would be immune for the commission of those acts.    

Why?

Because if it were to examine Trump’s motivation for the acts in question, it would find that they were committed so he could stay in power and hence were unofficial and deserving of not the slightest shred of immunity.

The Supreme Court reminds me of an old Bob Dylan song with a memorable line about a “Blind Commissioner.”  A blind commissioner is a commissioner which will not do his job because he is blind and will not see the sin and sickness all around him.   The Supreme Court has chosen to be Bob Dylan’s blind commissioner. 

8) How the Court makes a rash of criminal behavior, which it first says might not be protected by immunity, ultimately immune

As I said, the Court said that if the President commits an official act that is within his exclusive domain, the president’s act is wholly immune from prosecution.  Hence if he told the attorney general that he’d be fired if he did not spread disinformation about the election, his threat would be immune from criminal prosecution.   Period.  

However, what if the President commits an official act which is also subject to the jurisdiction or decision- making authority of other branches or members of the government ?  The Court ruled that these acts would be “presumptively immune” from prosecution.   More specifically, the court said that these acts would be immune unless the Government can show that prosecution would not in any way be intrusive to the authority or workings of the executive branch.

However, any sort of legal investigation will be somewhat intrusive.  For example, if a legal investigation compels one to search for documents, the 90 minutes spent searching for the documents constitutes an intrusion.  Therefore, any President being sued can nix any suit by alleging that it will be somewhat intrusive.  

Of course, the question should not be whether something is intrusive.  The question should be whether it is unduly intrusive.   For example, in litigation, parties have the right, before trial, to get information from the opposing side.   A Plaintiff might ask  for a defendant’s tax returns, medical records etc.  One cannot invalidate a discovery request by saying it is burdensome because  everything is somewhat burdensome.  The question is whether it is unduly burdensome, or too burdensome given the gravity and gravamen of the alleged wrongs which had given rise to the suit. 

The test the Supreme Court devised will make almost everything immune because every charge will entail some kind of a burden or intrusion.     

9) Justice Deferred is Justice Denied

With respect to almost every charge made, the Supreme Court remanded the issue back to the lower court to determine if official acts were involved and if prosecution of those official acts would be intrusive and hence not subject to prosecution.    This makes it a foregone conclusion that the case against Trump will not be heard before the election.  Of course, the Court has been encouraging delays all along.   The Court took almost two months to render this despicable decision.   By contrast, when Bush sought a Supreme Court injunction halting the recount of the votes in  Florida, in 2000, Bush got the injunction,  which gave him the White House, in less than 48 hours.   The bias of this Court is plain to see.   What are you going to do about it ?

If Trump wins the election, any suit against him will be summarily dismissed with all the vehemence and virulence of a Nazi jackboot.  What are you going to do about it.  Or will it to be too late to do anything after he assumes the helm of state.  Is it, perhaps, time to do something drastic  right now. 

As stated above, this Court believes that Presidents must act decisively and unhesitatingly.  Perhaps citizens have a corresponding duty to act decisively and drastically to stop presidential power from metastasizing into the power of a Fuhrer.  

1. The dissenting opinion of Justice Sonia Sotomayor, Page 77 of the decision commencing at https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf (Emphasis supplied)