Mr. Trump’s Day in Court

By Rafael Hoffman

For most of the news-watching public, former President Donald Trump’s multi-front legal battles blend to form a background of disharmony.

Still, as they proceed through the courts, aspects of these cases are helping to write a yet unclear code of how presidents and American law interact. They are also posing unwanted challenges as the nation’s courts struggle to maintain their integrity at a time when they face high levels of pessimism over perceived politicization. Not an easy task while being asked to rule on matters affecting a former president and current leading presidential candidate.

The case likely to rocket the Supreme Court into this political spotlight first is Mr. Trump’s request for the justices to review a controversial ruling by the Colorado Supreme Court which banned him from appearing on ballots in that state based on its determination that he supported an “insurrection.”

Another pending matter likely to yield an important chapter in executive law is Mr. Trump’s claim that his having occupied the presidency makes him immune to the charges brought by Special Counsel Jack Smith accusing him of conspiracy to overturn the 2020 election. D.C. District Judge Tanya Chutkan rejected these claims, but they are presently before the Washington, D.C., Circuit Court of Appeals and could well find their way to the Supreme Court.

As Mr. Trump’s legal battles unravel against the background of the former President’s strong position to reclaim the White House, behind the polls and news stories lies new territory in legal doctrine still left unsettled more than two centuries after the Constitution was ratified.

Executive Privilege

The Constitution says nearly nothing about the protections presidents receive from criminal or civil prosecution. Yet, as courts would recognize and wrestle with, some level of immunity as relates to the performance of his duties is needed for the healthy function of government.

“You don’t want the president to be distracted while they’re in office with lawsuits or indictments. You also don’t want presidents to hesitate to act and be looking over their shoulders, fearing legal action when they make decisions,” said John Malcolm, Vice President of the Heritage Foundation’s Institute for Constitutional Government. “So long as they’re not committing murder or something that’s blatantly illegal, you want them to be able to act with energy, and not to hesitate to do what they think is in the best interests of the public.”

Early in the history of the republic, circumstances brought questions about those boundaries to courts.

In 1807, less than two years after leaving the vice presidency, Aaron Burr was charged with treason in connection to a shady land purchase that involved dealings with Spanish and British officials. Burr asked Chief Justice John Marshall, who presided over the case as a Virginia circuit judge, to subpoena then-President Thomas Jefferson to turn over certain documents as evidence. Burr argued the papers were necessary for his defense.

Jefferson countered that the president should be afforded unimpeded discretion in deciding what documents would be shared, saying that to do otherwise impedes the presidency. He also argued that making the president answerable to a court violated the Constitution’s separation of powers by making the executive beholden to the judiciary.

Marshall ruled that Jefferson was obligated to turn over the papers in question but acknowledged that the president should be protected from “vexatious and unnecessary subpoenas.” The decision is often noted for the distinction Marshall drew between England’s monarch and America’s president, who remains largely subject to the law.

Marshall’s decision has been quoted in most significant executive privilege cases since.

Josh Blackman, a professor at the South Texas College of Law in Houston, said that the importance of the Burr case has been poorly applied.

“The Aaron Burr decision is one that’s not well understood,” he said. “Jefferson never produced the entire document. He produced a redacted version of it, and Marshall never actually enforced the subpoena. The facts don’t bear out to be as strong of a precedent as many claim.”

Another important chapter in the tome of executive privilege was written in 1867 when the state of Mississippi sued President Andrew Johnson to prevent him from enforcing the Acts of Reconstruction. The case quickly found its way to the Supreme Court, which held the judiciary had no authority “to enjoin the President in the performance of his official duties.” The case clarified that courts were limited in allowing suits against how presidents executed their authority while in office.

Natural Immunity

The most significant rulings on the limits of executive privilege come from the Watergate era. Under pressure from the special prosecutor investigation and a court order to turn over White House tapes and documents, President Richard Nixon argued that the executive branch would be compromised if was forced to comply with the court-ordered subpoena.

In a unanimous decision, the Supreme Court ruled that no such blanket immunity exists and that ordering the president to obey the subpoena violated neither the doctrine of separation of powers, nor the need for confidentiality, unless a specific need for it could be justified. Their opinion cited Marshall’s 1807 decision that while the President is shielded from much litigation, he enjoys no absolute immunity.

Moreover, the justices held that holding the President accountable to the basic demands of the law fulfilled an essential element of the American system.

“When the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice,” stated the court in its opinion.

Sixteen days after Nixon was ordered to turn over the tapes, he resigned from office.

“The Supreme Court recognized presidential immunity, but at the same time set limits,” said Mr. Malcolm.  “They forced [Nixon] to turn over the tapes, and that led to his undoing. It established the principle that a president couldn’t be immunized from outright criminality.”

Nixon’s instructive role on the extents of executive privilege did not end when he left the White House.

In the dog days of the Johnson administration, an Air Force analyst gave Congressional testimony that reflected negatively on how the government dealt with the costs of developing a new transport plane. In 1970, the second year of the Nixon administration, he was dismissed. After a subsequent review years later determined the analyst had been terminated on insufficient grounds, he sued the then-former President for damages saying the firing was revenge for his testimony.

In 1981, the case made its way to the Supreme Court. In a 5-4 opinion, the justices held that the president “is entitled to absolute immunity from damages liability predicated on his official acts.” The majority argued that opening the executive to suits in matters that dealt even with what it called the “outer perimeter of his duties” would violate the separation of powers and impede the presidency.

In a concurring opinion, however, Chief Justice Warren Burger wrote that the immunity the court granted in Fitzgerald v. Nixon was “limited to civil damage claims” and did not speak to criminal charges. Yet, neither that limit, nor the extent of where the “outer perimeter” of the president’s functions end, have been fully tested.

Mr. Malcolm said that Mr. Trump’s attempts to claim immunity for his actions regarding the 2020 elections will bear on both points.

“I think we’re going to be getting some clarity soon,” he said. “We’re already seeing it to some degree in the 11th Circuit ruling that Mark Meadows took a lot of actions on behalf of the Trump campaign rather than as the White House chief of staff. Judge Chutkan already rejected the idea that Trump’s actions on the election were part of his official duties, and I expect the DC circuit will also, but we’ll see what the Supreme Court does. It will certainly be a precedent-setting case.”

Official Duties

Mr. Trump’s present arguments that he is immune from prosecution rest on several points. One of the most essential of them is that the actions Special Counsel Jack Smith argues were an illegal attempt to overturn an election, such as pressuring state officials to make re-counts and working to appoint alternate slates of electors, were part of his job as president, thereby shielded from court action.

His attorneys argue that since the President fully believed (and continues to believe) that he was the rightful victor in 2020, as such, his actions to, in his view, save results from corruption by illegal mail-in ballots and unscrupulous election officials were part of his Constitutional duty to “take care that the laws be faithfully executed.”

Mr. Smith counters that Mr. Trump did these acts “purely in his capacity as a candidate for office” and that “his efforts to overturn the election results do not fall within the outer perimeter of the presidency.”

Mr. Malcolm said the veracity of Mr. Trump’s argument could rest on whether he can prove that he indeed believed he had won. 

“There’s a case to make that since the Vice President is an inferior officer reporting to the President and that the Department of Justice is also under the President that ordering them to take actions are part of his duties,” he said. “My gut sense is that if they can prove that he knows these claims were false, then his actions come down to common law crimes which don’t fit within the duties of the President of the United States.”

Mr. Blackman said that while arguing that actions like Mr. Trump’s speech at the “stop the steal” rally were official duties is necessary to advance an immunity argument, it could make him liable to other charges.

“I argued that his speech on January 6th was protected speech specifically because he was engaged as a private citizen. It would be ironic now to turn that around and say it was part of his official duties, but I don’t think it’s an implausible argument,” he said.

Another of Mr. Trump’s claims rests on interpreting the impeachment clause of the Constitution.

“Judgment in Cases of Impeachment shall not extend further than removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law,” it reads.

Based on two sections of the Federalist Papers, Mr. Trump’s lawyers argue that the clause dictates that a president can only be subject to criminal prosecution after he has been convicted in an impeachment trial.

Most interpreted the clause, at most, to mean that a sitting president cannot be prosecuted while in office. Furthermore, Mr. Smith quotes the classic Constitutional commentator Justice Joseph Story that impeachment acquittal does not exempt presidents from further prosecution and that subsequent legal action after a Senate trial does not constitute double jeopardy. Would either of those points be true, Story wrote, “the grossest official offenders might escape without any substantial punishment, even for crimes, which would subject their fellow citizens to capital punishment.”

One argument that Mr. Smith attempted to poke at the argument that prosecuting a president can only follow impeachment conviction is the fact that President Gerald Ford pardoned Nixon after the latter resigned to avoid a Senate trial. At the time, Nixon was facing several potential charges for obstruction of justice and other allegations related to his cover-up of the Watergate break-in. Democrats and media blasted Ford for the pardon, but as years passed, even his harshest critics acknowledged it was a move needed to allow America to move on from national trauma.

Yet, if Mr. Trump’s untested theory is correct, no prosecution should have been possible and Ford’s pardon was unneeded. In her rejection of the former president’s immunity claims, District Judge Chutkan made that very argument.

Mr. Blackman said the historic fact of Ford’s pardon is not fatal to Mr. Trump’s claim.

“There are lots of reasons to give a pardon,” he said. “Nixon’s cases would have gone to court; I think Ford wanted to stop that process and help heal the nation.”

After Mr. Trump appealed his denied immunity claims to the Federal Court of Appeals, Mr. Smith petitioned the Supreme Court to take the case citing a strong government interest in fully adjudicating the question quickly. The high court denied the petition and the DC appeals court is set to hear Mr. Trump’s claims in the coming months.

Mr. Blackman posited that Mr. Smith’s motivation in attempting to skip straight to the Supreme Court betrays political motivations.

“His interest is to get this done before elections; he can’t say that, so he engaged in a sort of doublespeak,” he said. “The DC circuit already put this case on a very fast docket and we should have a resolution soon, so I don’t think the justices saw much reason to skip that step.”

Justices in a Minefield

While Mr. Trump’s immunity claims will remain at the DC circuit Court of Appeals, there is another matter that is near certain to make some form of precedent at the Supreme Court, casting it into a deeply unwanted political role.

For more than a year, left-wing activist organizations have advanced legal cases arguing that Mr. Trump’s role in the rioting that occurred on January 6, 2021, makes him an insurrectionist.

Looking directly back to the Civil War, the 14th Amendment to the Constitution bans anybody who previously took an oath to serve “as an officer of the United States” who “engaged in insurrection or rebellion” from holding public office. The clause is intended to block those that were part of the Confederacy’s military or government.

Other state courts rejected such claims on a variety of grounds, but the Supreme Court of Colorado ruled in favor of the group’s claims and as per their decision, Mr. Trump will not appear on the state’s primary or general election ballots. Anticipating certain challenges, the state court said its ruling would not take effect until the federal Supreme Court reconvenes to consider the case.

The judiciary in general, and particularly the Supreme Court, have long been skeptically viewed by much of the public as being “politicians in robes,” who decide highly charged cases based on ideological ends, justified with legal means. For most of the post-World War II era, it was conservatives who complained of “legislating from the bench,” as liberal courts re-shaped many areas of American law.

When during the Trump administration, the court’s majority took a conservative turn for the first time in over 75 years, that critical view largely transferred camps as the left took up the gauntlet of haranguing high court decisions. Even before this court ruled on any hot-button topics, a set of Democratic lawmakers introduced legislation aimed at packing the court with progressive judges and re-shifting the balance to their ideological favor.

Now the court has made several high-stakes rulings including overturning Roe v. Wade, limiting local government’s ability to restrict gun laws, deeming university admission policies guided by racial quotas unconstitutional, and giving far more generous terms for religion in the public square and government funding of religious education. In response, the left has reacted with venom; for months Congressional Democrats have carried on a campaign to portray right-leaning justices as violating ethical codes.

Conservative-leaning legal scholars said these rulings simply returned jurisprudence to the Constitution’s intentions after two generations of activist justices remade the law to their liking.

Even before the court decided it would take up the Colorado court’s ruling, several on the left had their accusations of a ruling in Mr. Trump’s favor loaded and ready to fire.

“It’s going to feed into how partisan and beholden the U.S. Supreme Court is to Donald Trump,” California Democratic Congressman Ted Lieu told Politico. “It feeds into the whole Roe v. Wade decision, and how he appointed ultra-religious justices to overturn Roe versus Wade. And do you really want Trump, again, who is going to appoint even more?”

Chief Justice John Roberts has worked arduously to defend the court’s independence and loyalty to the law. Against this background, many posit he and the other justices are dreading the court having to take a role in the 2024 election.

“This is John Roberts’ worst nightmare,” said Mr. Blackman. “There’s no winning, no way to make the optics look good.”

As the Colorado case heads the court’s way, news coverage filled with comparisons to the impact the justices’ 2000 decision in Bush v. Gore had on their integrity. Amid a very close presidential race, a few hundred unclear voters in Florida stood to determine the victor. The court ruled to stop a series of re-counts at a point when George W. Bush was ahead, handing him the presidency. Ultimately, the result would have been the same, had the ruling gone the other way, as subsequent full re-counts confirmed that Mr. Bush had a majority in the state.

Yet, as the decision came down to justices appointed by Republican presidents verses those appointed by Democrats, political accusations were inescapable. The fact that two of the justices in the majority, Sandra Day O’Connor and Anthony Kennedy, often sided with their liberal colleagues on social issues did little to change that perception.

Mr. Blackman, who submitted a brief arguing for Mr. Trump to stay on the ballot in Colorado, said that the details of Bush v. Gore and the present case are markedly different.

“The analogy is a stretch since the cases are almost opposites,” he said. “In Bush v. Gore the Supreme Court intervened to say, ‘Stop counting.’ Here, the state court said, ‘Don’t let this guy on the ballot.’ The question here also is much broader. This is not just a question about 1,000 hanging chads in south Florida, it’s potentially about taking a candidate off the ballot in 50 states.”

Despite myriad differences between 2000 and the Colorado question, most of the public, aided by partisan spin, will see whatever conclusion the Supreme Court reaches through a political lens.

There are narrow roads for the court to take that would allow Mr. Trump to remain on the ballot, while steering clear of determining whether the Capitol riots fit the definition of an insurrection or if Mr. Trump’s actions make him an insurrectionist. One such approach is to argue, as Mr. Blackman’s brief did, that the president does not fit the definition of “officer” used in the 14th amendment’s ban. Another is to rule that state courts lack the authority to ban candidates from the ballot, as dissenting judges in the Colorado opinion argued.

The safest road to avoiding the perception of politicization would be a unanimous decision or one that draws conservative- and liberal-leaning justices on both sides of the opinion. Should the court uphold the Colorado ballot ban, concerns for reactions go far beyond the court’s integrity as such a move would be viewed by many voters as tyrannical impingement on democracy.

“I think the Supreme Court would probably do anything to stay out of this case, but I would be very surprised if a majority of justices affirm what the Colorado Supreme Court did,” said Mr. Malcolm. “There are any number of reasons the court could say they were wrong, and I think there’s a reasonable possibility that this could be a unanimous opinion. If Donald Trump is disqualified from appearing on any ballot, I think that would be terrible for the county and I perish to think of what the consequences would be.”