by Jeff Childers
sWe begin with the UK Independent’s alarming headline from this morning: “Biden warns Trump can do ‘whatever he pleases’ if elected as Republicans relish Supreme Court immunity ruling.” Tellingly, that was a modified headline. Earlier in the day, it more simply said, “Supreme Court awards Trump some immunity from prosecution.” Biden did say that though, even though the Supremes ended none of the Trump cases. Biden is cognitively functioning on par with an above-average boiled turnip. But Biden and his handlers have no idea how good the decision really was, or they would be crying much, much harder.
Let’s begin with what yesterday’s decision didn’t do. Trump v. United States did not “totally immunize” the President. Instead, it created a three-tier test (the Supreme Court loves three-tiered tests), which explains why the Independent’s first headline said it provided Trump with “some” immunity.
But Democrats desperately hope for some distraction from Biden’s terrible Debate, and they are thinking maybe this could be it.
Joe made a short, sleepy, mumbly announcement last night that was just a feeble tantrum about the Immunity decision. While reading the three-minute blurb off a teleprompter, Joe recited, “For all practical purposes, today’s decision almost certainly means that there are virtually no limits on what a president can do. This is a fundamentally new principle. And it’s a dangerous precedent.”
The three liberal Justices were equally unhinged, with Justice Sotomayor going so far as to say the majority decision transformed the Office of the President into “a king above the law.” I blame the public schools for Justice Sotomayor not knowing what a king is. She was probably thinking about a royal personage more like Burger King.
Let’s cut through all the noise right now. I’ll tell you what it actually said, and then I will explain why it changes everything. And after explaining how it doesn’t help Trump much, I’ll tell you how the Supreme Court sneakily helped Trump anyway, even though this decision largely ignored his actual cases. Stick with me for a minute, it will be worth it.
Regarding Presidential Immunity —for the first time in American history— the Supreme Court, solidly relying on a whole bunch of previous cases about related presidential issues, announced a brand-new three-tier immunity test:
Tier 1: Total Immunity for Constitutional Acts. “The President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.” This blessed tier is only for when a president exercises explicit authority under Article Two of the Constitution. Things like negotiating treaties, issuing pardons, and directing military operations. As you can imagine, this is a small, well-defined tier.
Tier 2: Presumptive Immunity for Official Acts. The Court declared that “the President must be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no dangers of intrusion on the authority and functions of the Executive Branch.” In short, if the President acts officially, as President, that act is immune—but a prosecutor can still proceed if they can show criminalizing that type of conduct will not hinder the Presidential office.
Tier Two answers the Democrats’ most deranged temper tantrums. Prosecuting Presidents who order the military to assassinate (i.e. murder) their opponents would not harm the Presidential office, because presidents are not supposed to murder people, and it wouldn’t hinder the Presidential office to criminalize murder. Duh.
Tier 3: No Immunity for Unofficial Acts. “The separation of powers does not bar a prosecution predicated on the President’s unofficial acts. The first step in deciding whether a former President is entitled to immunity from a particular prosecution is to distinguish his official from unofficial actions.” For example, the Court said a President has zero immunity when he acts as the leader of his political party, or when pursuing his personal interests.
Actually, assassinating political rivals would probably fall squarely under Tier 3 — enjoying no immunity at all.
As you can see, this three-tier system neither turns Presidents into kings —not Burger King, impotent King Charles, or Solomon— nor places presidents above the law. Certainly not Trump. The decision only resolved a couple of the worst counts in a single Trump case. As for the surviving counts involved in this particular appeal (Judge Chutkan’s case), the Supremes bounced most of the counts back down to her, to apply the new test and then get back to them.
