Fighting The System

There are problems large and small in Trump v U.S. The large ones attract attention (“ARE YOU FUCKING KIDDING ME??!!??”), but the smaller ones are often where legal challenges, and analysis, pivots. It’s not enough, in legal analysis, to dislike the outcome. The problem must arrive from how you get there; or the rule of law really is just the rule of the final decision.

Which, yes, is the fundamental problem of the Roberts Court; but that’s another discussion.

The problem, stated in lay terms, is here:

But just how far that immunity extends is murky. The Supreme Court’s 6-3 decision left many questions unanswered and lower courts have not yet wrestled with them. And they may not get the chance: Within hours of Trump winning, Smith was discussing with Justice Department officials how to wind down the federal cases against him. 

It’s not likely that Trump or anyone else will have a firm sense by January of what constitutes “official actions” that are entitled to immunity, for instance. It is doubtful that the White House or prosecutors will know for certain when they can overcome the “presumptive immunity” the Supreme Court said applies to most of a president’s actions. It’s also not clear how the court defines the “core” constitutional functions of a president that the opinion said are entitled to “absolute immunity.” 

Much of that analysis, the majority wrote, “is best left to the lower courts.”

And the problem is: how the fuck does that happen?

The ideal Supreme Court function is that the lower courts (first trial, and then as necessary appellate) tackle legal issues arising from fact situations, and as required (“change the facts, change the outcome”) create the “rule of law.” Call it a modified common law system. The Supreme Court gets involved only to untangle conflicting interpretations of particular questions of law among the appellate districts. Again, ideally issues of law which are not being resolved between the circuits, where each stubbornly clings to its interpretation against other interpretations. Then, again ideally, the Court issues a Solomonic decision and all sides accept the wisdom thereof.

The Roberts Court has run roughshod over this ideal, although I would hardly say they’re the first to do so. But the Court invited challenges to Roe, for example, because they wanted to overturn it, and there was no real conflict among circuits giving them grounds to do so. Legislatures obliged with laws violating Roe, and Dobbs is your uncle.

Here we are, in other words.

By contrast, most of the Warren Court landmark cases arose as challenges to statutes, and the legal doctrines they embodied, such as “separate but equal.” The Warren Court invited challenges to settled legal and Constitutional principles. The Roberts Court did, too; but with an eye to increasing government power and inequality; not the opposite.

But I digress; my point was, ideally trial courts (which hand the settled facts to the appellate court after “finding” them in a hearing or a trial) sorted out how changed facts changed outcomes, and the appellate courts straightened out legs issues for the guidance of the trial courts. And that process would carry out over many courts across the land and across time, so new solutions could be more acceptable as they arose. The exception here is constitutional principles, but those are supposed to be rare, making their more absolute (and abstract) status both more lofty, more general, and more acceptable. It should be harder to change the facts and change the Constitutional outcome, just as changing the facts should not change justice (which should be for rich and poor alike. Again: ideally.).

So, the question: how do lower courts across the land wrestle with the fact issues and issues of immunity raised by the Trump decision, if prosecutions of former Presidents are so rare none have been attempted before Trump? How does this mythical mechanism ever engage and churn and produce outcomes for the Supreme Court to one day decide among? Surely a constitutional principle is at stake. Surely that means the Court must provide clear guidelines to legitimate its decision. How many such prosecutions must bubble up across the country before the Court magisterially steps in again to settle the squabbles?

And how do other circuits get involved, anyway? You’re thinking of Florida, aren’t you? But venue lay there because of actions Trump took after he was President (mostly refusing to return the documents on demand. Will that situation occur again if Trump lives out his second term (I refer only to his age)? Probably.) Does he have immunity again, in that case? Probably not, but it’s the only situation that might give rise to conflict among circuits on the immunity issue. Venue in any case involving Presidential action (like bribery, as Justice Barrett pointed out), would lodge venue in D.C., and establish a straight line from one trial court to one appellate court to…the Supremes. The “lower courts” most likely to “wrestle” with these decisions will be only: two.

So whence comes the diversity and the analysis of the many which can legitimate the final analysis of the few?

While I have you here, another issue raised by this article: the weaponization of the DOJ.

Trump’s supporters brush aside the remarks as campaign hyperbole – an extension of the “lock her up” chants at his 2016 rallies that were meant to intimidate Hillary Clinton but never materialized once he entered office. 

Others pointed to institutional checks on a president’s power that were in place during Trump’s first term – and remain today. While the Supreme Court granted former presidents wide immunity, the ruling made no such promises to aides in the White House or Justice Department. That could create a line of defense against a president pushing to the edge of the law.

Here’s where the examples of Jeffrey Clark and Robert Bork are instructive. Bork is the guy who accepted the job of hatchet man in Nixon’s Saturday Night Massacre. For his dubious efforts he was denied elevation to the Supreme Court by the Senate. Bork ended his days as a whiny crank. Jeffrey Clark was all in for Trump’s plans to steal the 2020 election. He’s been disbarred and, I believe, is still facing criminal charges in Georgia. (Still unclear what happens to that case, BTW. Trump will be dropped from it, but that doesn’t mean the other defendants automatically go with him.) Giuliani wasn’t even a government lawyer, and he was disbarred for his aid to Trump’s efforts. There’s a serious object lesson there for lawyers, one they won’t soon overlook. The President can’t pardon you out of a disbarment proceeding, especially if the Bar takes seriously the legal doctrine that accepting a pardon means accepting guilt. Bars tend to frown on criminals being lawyers, under any circumstances.

Issues of presidential immunity have been settled, for the time being, by the electorate, which doesn’t seem to care too much about it, one way or the other. It isn’t likely to come up with the “Biden crime family” if for no other reason than the Jeffrey Clark example: lawyers are officers of the court before they are government employees, a status that can be revoked. And without a law license, what good are you to the DOJ? Or any other employer, for that matter? So Trump v U.S. is fated to be a legal footnote and the pea beneath the mattress of many a ConLaw professor, but nothing more for a time. The next Administration might want to try Trump again, on new grounds, in five years. But the electoral calendar is instructive: unless you are certain of a Democratic administration for at least 8 years, what’s the point of the effort? Seriously. The best response is a Constitutional amendment to repeal the decision, but that’s even less likely. Sleeping dogs will be let lie.

And here we are, in this brave new world that has such creatures in it. Yet strangely familiar, too; both the landscape and the creatures. And the lesson is, that it is a government of laws, not of men. That despite the powers any President may imagine he has, the system will decide whether the President’s will be, or not be, done. Only the dictator or the monarch are truly sovereign, and we don’t have either one of those. At the moment we only have three wealthy men who imagine they are Masters of the Universe.

Now they get to fuck around and find out. While the rest of pay the price for the majority who bothered with this last election.

Is this a great country, or what?