by Jeff Childers
The Trump trial resumed yesterday. The whole day was filled with David’s Pecker, sorry, I mean David Pecker’s, testimony, which thrust its way through hours of continuous testifying for the state. Whatever happened, Trump seemed pleased in his post-trial appearance, but details were scarce, which was probably also a good sign for Trump.
Today, Trump’s team get its chance to cross-examine Pecker, who will hopefully spurt out some helpful facts for the President.
Since we don’t yet have details on what Pecker might have said, today’s update starts with yesterday’s CNN story headlined, “CNN Poll: Few think Trump is being treated the same as other defendants | CNN Politics.”
The results of the poll were predictably divided along party lines:
Democrats and Democratic-leaning independents say Trump is being treated more leniently than other defendants by the criminal justice system (61%), while Republicans and Republican-leaning independents largely say he’s being treated more harshly than others (67%). Independents who don’t lean toward either party tilt toward his treatment being more lenient (27%) than harsh (15%).
Lack of confidence in the selected jury to reach a fair verdict is deepest among Republicans and Republican-leaning Americans (37% say they have no confidence at all), but even among Democrats and Democratic-leaners, 40% say they have little or no confidence in the jury’s ability to reach a fair verdict.
Given that nobody has ever been prosecuted for Trump’s alleged crimes, it’s painfully difficult to imagine how democrats could possibly think he’s being treated more leniently than other defendants. But whatever. I’m not interested in trying to resolve that impenetrable conundrum.
There was more action at the Supreme Court yesterday than in Manhattan. The nine justices took two hours of oral argument on Trump’s presidential immunity defense, which holds out hope of shifting all his cases in his favor. I listened to the whole thing.
The liberal justices were preoccupied with extreme hypotheticals. What if the president ordered an assassination on his political rivals? What if the president ordered a military coup? Does immunity mean he can never be criminally charged, ever, no matter what?
The conservative justices pushed back. Could Obama be prosecuted for his drone strikes on civilians? Going forward, what’s to stop every President from being targeted once they leave office? Is it risky to leave prosecution decisions in the hands of a creative prosecutor who wants to go after a president?
Best I can predict, the case boils down to whether Trump’s actions on January 6th were “official, public” acts or “personal, private” ones. The justices seemed inclined to send the case back down to the lower courts to figure that out first. But even that was not completely clear. For instance, Justice Kavenaugh tellingly asked whether every act of a first term president can be described at least partially in support of his re-election?
In other words, doesn’t a first-term president do everything for both public and private reasons?
In light of that question, my guess is the final decision, expected soon, will include some kind of test or formula for how to determine whether a particular presidential action is official or personal.
The Justices all seemed keenly aware that this decision will be historical and could permanently change the President’s role forever. And that’s just the first groundbreaking, history-making development in today’s roundup.
Before leaving the Supreme Court story, I’d like to briefly point out a few things that exasperate me about the discussion of presidential immunity. I’m only a commercial litigation attorney, not a constitutional scholar, and nobody listens to me, but during the entire two hours of oral argument and hundreds of probing Supreme Court questions, it struck me the Justices were largely missing the point.
All nine Justices, including the liberals, seemed shocked by the concept of absolute presidential immunity. Like me, you’ve probably heard the media’s vomitous, broken-record jargon until your ears were bleeding: “nobody is above the law.” Really? Is that true?
Let’s start with judges. Judges are immune. If a judge makes a mistake, and an innocent person goes to the electric chair, what happens? Nothing. Even if the judge intentionally railroaded the defendant because of racial bias or for any other reason, what happens? Nothing.
How about Congressmen? Congressmen are immune. If they start a war that gets thousands of Americans killed, for illegal reasons (Wag the Dog), what happens? Nothing. (Critics will yap about bribery. So what? How many successful prosecutions have there been? At best, which is a stretch, bribery prosecutions only show a limited exception to Congress’ broad, general immunity.)
How about City Commissioners? City Commissioners are immune. What if a city commissioner violates citizens’ constitutional rights in Florida by mandating vaccines, and an outraged lawyer (me) proves the constitutional violation in court? What happens to the Commissioners?
Nothing.
How about cops? Cops are immune. At least, they enjoy qualified immunity. What happens if a cop negligently mows down grandma while chasing a teenaged jaywalker at irrationally high speeds? Nothing. Immune.
For Heaven’s sake, the entire government is immune. It’s a concept called sovereign immunity. The only way ‘round sovereign immunity is when the government graciously de-immunizes itself by passing a law allowing certain types of claims against government officials. Otherwise, tough luck, starbuck.
Although his immunity produces extremely vexing results in many cases, it is just as necessary as other types of government immunity. The President is not even an ordinary government official. He’s an entire branch of government. Article II of the Constitution establishes the President as the Executive Branch. Under the Constitution, the President enjoys powers exceeding those of any other government official, so it seems uncontroversial that he would also enjoy immunity exceeding that of any other government official.
I mean, through his pardon power, the President can even dish out immunity to anybody else, for any crime, no matter how horrible, even mislabeling checks. Why not himself?
Would I love to see Barack Hussein Obama tried for his crimes? A hundred percent. But that would open Pandora’s immunity box and start the political prosecution train going. Next stop, Banana Republic.
What to me was unaccountably absent from yesterday’s oral arguments was any discussion about the mountain of broad immunities already enjoyed by government and whether the President’s immunity should rest somewhere near, if not right at, the peak.
In other words, at minimum, a president should never have less immunity than every other government official. We put up with immunity so judges can rule without fearing personal consequences. We want Presidents to execute their duties boldly and decisively.
Nobody made that point yesterday.
What can I tell you? It’s a super strange year.
