The Supreme Court followed Fitzgerald slavishly in oral arguments, and that’s the problem.
Fitzgerald comes in three parts:, majority opinion (joined by then Justice Rehnquist), the concurring opinion by Chief Justice Burger, and the dissent by Justice White. While I don’t disagree that Presidents should be free from the threat of civil suits while in office (which are privately controlled and can be frivolous), the threat of a rogue prosecutor, or even a vengeful successor to office (i.e., Trump. In all the years of the Republic, he’s the only credible threat.), is virtually non-existent. The fear of a vengeful prosecution also undermines the bedrock principles of a grand jury and a petit jury protecting justice. The system, in other words, has checks and balances.
I mention that familiar phrase because it is not in the constitution, but we all take it as “constitutional.” Fitzgerald mocks the dissent for relying on the concept that “no man is above the law,” because that phrase is not found in the constitution. By the majority makes much of the concept of “separation of powers,” another phrase not found in the Constitution.
That, by the way, is where Marbury comes in; in the majority opinion, I mean. There’s a “technical” argument, which I’ll skip for the moment, because the legal foundation of “separation of powers” actually comes from Marbury. Fitzgerald uses Marbury to support the separation doctrine, both for the Presidency (and so protect it from civil suits), and, of course, for the courts. But are the courts independent?
Congress establishes how many there are, and what their jurisdiction and venue are. Congress establishes the cases the Supreme Court must, or can, review, a power it effectively transferred (in part) to the Court in the Judicial Act of 1925. And what Congress granted, Congress can take away again.
Congress appoints judges and justices, establishes all court systems (judiciary, bankruptcy, patent, to name a few), establishes the number of courts and appellate justices and Supreme Court justices; and sets their pay. It even sets rules for judicial retirement.
The courts have independence; but that independence depends upon the agreement of the Congress, and the people. The court is literally the most dependent branch of government established by the Constitution. Art. III establishes only a judicial system and the court that sits atop it. Everything else is left to Congress. Separation of powers? Independent branch of government? Third branch of government? That’s all extra-constitutional, most of it established in law by: the courts.
That makes it a very delicate balance, indeed. Justice Kavanaugh said Trump’s immunity appeal was not just about the case before the Court. He was all but quoting Burger’s concurrence. The Court in Fitzgerald was reaching out to establish a broad principle, one I actually agree with. But the rap on Roe was that the result was right, just the legal reasoning was poor. It was overruled by an equally poorly reasoned opinion, aimed solely at achieving the desired result.
The dissent in Fitzgerald makes this point; that both the reasoning and the conclusion are unsound (otherwise it would be a concurrence, wouldn’t it?). The dissent argues that the majority opinion threatens the separation of powers, and places the sitting President above the law. Not as high above as criminal immunity; but too high for the four dissenting justices.
Of course, the difference between Fitzgerald and Trump (the case), is that Fitzgerald involved civil damages against an acting President, and Trump involved criminal charges against an individual who happens to wield enormous power because of a constitutional election.
The remedy forestalled by Fitzgerald is damages for an injury allegedly arising from the conduct of the office (“official acts”). What is the remedy for criminal actions taken by the sitting POTUS? Immunity, because criminal process might be abused? Funny how the doesn’t stop poor people and in-white people from being arrested and charged on a daily basis. Maybe immunity for Presidents has something to do with protecting powerful white men from lesser actors?
It’s not an idle or ill-founded question.
The existence of alternative remedies and deterrents establishes that absolute immunity will not place the President "above the law." For the President, as for judges and prosecutors, absolute immunity merely precludes a particular private remedy for alleged misconduct in order to advance compelling public ends.
The weakness of the analysis in Trump relying on Fitzgerald is highlighted here, because Fitzgerald ultimately rests on that issue: “absolute immunity merely precludes a particular private remedy for alleged misconduct.” What private remedy is there for an alleged crime? Civil suits are fundamentally a private remedy. The DOJ has rules against prosecuting a sitting POTUS. In over 200 years, we’ve never had to prosecute a president for crimes committed in office. Maybe what’s changed is Trump, not our ideas of governance.
True, Trump need not be granted absolute immunity from criminal liability. But then why consider a general rule applicable to all hypotheticals, rather than only the facts presented by the indictment? Here, again, although the argument relied on it, Fitzgerald offers no support:
A rule of absolute immunity for the President will not leave the Nation without sufficient protection against misconduct on the part of the Chief Executive. There remains the constitutional remedy of impeachment. In addition, there are formal and informal checks on Presidential action that do not apply with equal force to other executive officials. The President is subjected to constant scrutiny by the press. Vigilant oversight by Congress also may serve to deter Presidential abuses of office, as well as to make credible the threat of impeachment. Other incentives to avoid misconduct may include a desire to earn reelection, the need to maintain prestige as an element of Presidential influence, and a President's traditional concern for his historical stature.
How many of those restraints affect a President determined to commit crimes? Trump, after all, called for violence at the Capitol, aimed at Members of Congress, in order to overturn the election. That’s the essence of the criminal charges against him. It’s also Justice White’s argument in Fitzgerald:
The Court now applies the dissenting view in Butz to the Office of the President: a President, acting within the outer boundaries of what Presidents normally do, may, without liability, deliberately cause serious injury to any number of citizens even though he knows his conduct violates a statute or tramples on the constitutional rights of those who are injured. Even if the President in this case ordered Fitzgerald fired by means of a trumped-up reduction in force, knowing that such a discharge was contrary to the civil service laws, he would be absolutely immune from suit. By the same token, if a President, without following the statutory procedures which he knows apply to himself as well as to other federal officials, orders his subordinates to wiretap or break into a home for the purpose of installing a listening device, and the officers comply with his request, the President would be absolutely immune from suit. He would be immune regardless of the damage he inflicts, regardless of how violative of the statute and of the Constitution he knew his conduct to be, and regardless of his purpose. The Court intimates that its decision is grounded in the Constitution. If that is the case, Congress cannot provide a remedy against Presidential misconduct, and the criminal laws of the United States are wholly inapplicable to the President. I find this approach completely unacceptable. I do not agree that, if the Office of President is to operate effectively, the holder of that Office must be permitted, without fear of liability and regardless of the function he is performing, deliberately to inflict injury on others by conduct that he knows violates the law.
We have not taken such a scatter-gun approach in other cases. Butz held that absolute immunity did not attach to the office held by a member of the President's Cabinet, but only to those specific functions performed by that officer for which absolute immunity is clearly essential. Members of Congress are absolutely immune under the Speech or Debate Clause of the Constitution, but the immunity extends only to their legislative acts. We have never held that, in order for legislative work to be done, it is necessary to immunize all of the tasks that legislators must perform. Constitutional immunity does not extend to those many things that Senators and Representatives regularly and necessarily do that are not legislative acts. Members of Congress, for example, repeatedly importune the executive branch and administrative agencies outside hearing rooms and legislative halls, but they are not immune if, in connection with such activity, they deliberately
violate the law. United States v. Brewster, 408 U. S. 501 (1972), for example, makes this clear. Neither is a Member of Congress or his aide immune from damages suits if, in order to secure information deemed relevant to a legislative investigation, he breaks into a house and carries away records. Gravel v. United States, 408 U. S. 606 (1972). Judges are absolutely immune from liability for damages, but only when performing a judicial function, and even then they are subject to criminal liability. See Dennis v. Sparks, 449 U. S. 24, 449 U. S. 31 (1980); O'Shea v. Littleton, 414 U. S. 488, 414 U. S. 503 (1974). The absolute immunity of prosecutors is likewise limited to the prosecutorial function. A prosecutor who directs that an investigation be carried out in a way that is patently illegal is not immune.
So is the correct understanding of immunity that which attaches to the office? Or to the act? That’s what allows for hypotheticals. But does it require them? More to the point, does this require them? The dissent in Fitzgerald cites case law for particulars. There are none for criminal immunity, but some Justices in Trump’s case insisted random thought experiments must be conducted before any conclusions in this case can be drawn.
Perhaps the Court will justify its concerns with Marbury:
“the question, whether the legality of an act of the head of a department be examinable in a court of justice or not must always depend on the nature of that act."
And it’s the nature of Trump’s acts that is still at issue. I think only Thomas, Alito, and Kavanaugh think the hypotheticals are the most important thing. But Justice Barret seems to think otherwise:
Which could lead her to be aware of this: Which probably seems like a strong argument to Trump, but Justice Barrett already has their number.
And while we’re floating hypotheticals:
Should the decisions about presidential immunity (which must ultimately be modifiable) come before, or after, the murders?
Some Justices insisted on hypotheticals, but in the end it was only clearly three. Barret seemed skeptical, even incredulous. Roberts gutted the VRA, but does he want his tenure to be synonymous with the case that gave Trump immunity for his crimes? Roberts can say the VRA can be rewritten. How do we rewrite American history if Trump wins office again and commits crimes with impunity, crimes he can’t start to be tried for until after his term? What Court legacy is that?
The situation is worse than it should be (even the argument for remand for further hearings is not supported by Fitzgerald’s reasoning). But that doesn’t mean it will be as bad as it could be. Roberts could vote with Alito, Thomas, and Kavanaugh, to remand to Chutkan for further fact-gathering; but that would still require Barret to make it happen. Based on the arguments, I don’t think that will happen.
OCICBW.
