What does immunity mean for Willis’s beleaguered case?

On September 30, 2011, Pres. Barack Obama, without due process of law, killed Anwar al-Awlaki, an American citizen living (and plotting terrorist acts) in Yemen, with a drone strike. al-Awlaki’s father, who is also an American citizen, still lives in Arizona and continues to make an issue of his son’s execution. Obama’s decision was an official act in furtherance of the fight against global terrorism, but it still violated the protection afforded by the U.S. Constitution that no person shall “be deprived of life, liberty, or property, without due process of law” (5th Amendment).

If Justice Sonia Sotomayor’s panicked dissent in Trump v. United States had been the majority opinion, Obama would be open to be criminally prosecuted for ordering the execution of an American citizen without due process of law.

The media wasn’t much better in its analysis as it myopically focused on the current prosecution of Donald Trump, who brought the case, and not the broader precedent, history, or tradition of the office. Kyle Cheney, a Congress reporter for Politico wrote, “And although the ruling’s most immediate impact is on the federal election case in Washington, the implications for the presidency itself — including for Joe Biden and any successors — are also likely vast.”

Cheney continues, “In Georgia, where he is similarly charged with trying to corrupt the state’s election results in 2020, Trump has previously tried to shield himself by claiming his conduct is immune from prosecution because he was acting as president. The judge in that case, Scott McAfee, has yet to rule on that effort, and now the Supreme Court may help guide his hand.”

Michael Conway, former counsel, U.S. House Judiciary Committee, wrote on MSNBC.com that the decision was “a stunning example of institutional hubris and reckless judicial activism.”

But the analysis of Conway, Cheney, and others is nothing more than a load of poppycock.

All the Supreme Court did was require courts to make a ruling as to whether a potentially criminal act by a president was in furtherance of an official act of the office or was not an official act and therefore open to criminal prosecution. Sotomayor’s alarmist dissent was, in my opinion, beneath the dignity of the Court. If a trial court decides that Trump’s actions were not official acts pertaining to the President’s official Constitutional and legal duties (and campaign acts are not and have never been deemed to be “official” acts of the President), then he can still be prosecuted. The decision adds another step for prosecutors wishing to prosecute a president. It doesn’t give a president a blank slate to break the law at will with no consequences. In fact, Chief Justice John Roberts in his majority opinion addresses the dissent stating it, “strike[s] a tone of chilling doom that is wholly disproportionate to what the Court actually does today.”

There is nothing new in the theory around a president’s wide latitude to carry out the duties of the office. As pointed out by my friend, Dan McGirt on his Facebook page, in 1977, former President Richard Nixon articulated the concept to David Frost:

Frost: So what in a sense, you’re saying is that there are certain situations, and the Huston Plan or that part of it was one of them, where the president can decide that it’s in the best interests of the nation or something, and do something illegal.

Nixon: Well, when the president does it that means that it is not illegal.

Frost: By definition.

Nixon: Exactly. Exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president’s decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise, they’re in an impossible position.

Frost: So, that in other words, really you were saying in that answer, really, between the burglary and murder, again, there’s no subtle way to say that there was murder of a dissenter in this country because I don’t know any evidence to that effect at all. But the point is: just the dividing line, is that in fact, the dividing line is the president’s judgment?

While Nixon articulated a concept that was believed about the Office of the Presidency more than half a century ago, the concept has never been tested in a court of law. Speaking on the RICO case against Trump and other indicted co-conspirators being prosecuted by Fulton County D.A. Fani Willis, Atlanta attorney Andrew Fleischman said, “I think this does hurt the Georgia case quite a lot. There’s not much clear guidance at all. I think Georgia courts will likely also have to apply this novel analysis, and that creates a lot of opportunity for delay.”

While, indeed, the U.S. Supreme Court hasn’t provided a lot of guidance in their 6-3 decision, what does seem obvious is that a prosecutor, like Willis, will have to first establish whether an alleged crime is an “official” act of the President related to the duties of the office or a completely extra-presidential act. Whether that needs to be part of a Grand Jury’s indictment or simply part of the defense, the Supreme Court offers no guidance, simply stating, “Questions about whether the President may be held liable for particular actions, consistent with the separation of powers, must be addressed at the outset of a proceeding.”

However, the Supreme Court does place the burden of proof on the prosecution – which is also where the burden of proof lies for the underlying crime – as immunity is going to be presumed thanks to the majority decision.

While Willis may be able to show that the President acted in a way that was beyond his official authority as President, the chaotic management and multiple missteps in the prosecution of the case by the Fulton County District Attorney’s Office makes it unlikely that it can regroup for a successful prosecution in the face of this ruling. This speaks more to the D.A.’s office itself more so than the burden placed on it by the ruling.

Rob DiRienzo, writing for Fox5 Atlanta, seems to come to a similar conclusion, “[The decision] could create more legal battles in a trial that has already ground to a standstill amid a motion to disqualify District Attorney Fani Willis for her romantic relationship with special prosecutor Nathan Wade.”

DiRienzo quotes Emory University School of Law Professor Jonathan Nash who points out, “Certainly, we’re at least going to get arguments about [this decision], whether there is immunity in the Georgia case.”

While the Supreme Court has added an extra step for any prosecutor seeking to prosecute a current or former President, the concept of immunity is certainly not new. Moreover, there is another way for courts to be able to prosecute a former President for crimes committed in office, and it is found in the U.S. Constitution itself, and that would be impeachment by the House AND removal by the Senate of a President. While no President has ever been removed by the Senate, Nixon likely would have for the Watergate cover-up if he had not resigned. Nixon’s potential prosecution was also forestalled by Gerald Ford’s pardon of the former president so the nation would be spared the humiliation of the prosecution of a former Chief Executive.

Chief Justice Roberts points this out in his majority decision noting that Article I of the U.S. Constitution states impeachment and removal opens up a president to criminal prosecution, “Judgment in Cases of Impeachment shall not extend further than to 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” <emphasis added>.

While the House did impeach Donald Trump over some of the issues that have been presented in the various trials, the Senate did not remove, which further seems to point more to partisan politics than the egregiousness of the supposed crimes. It’s worth a court’s time to take the extra step when making the extraordinary attempt to prosecute a President. Surely if Alvin Bragg can get a conviction on all 34 counts in his ridiculous case, this extra step should not hinder even the most partisan political hack prosecutor from getting the finding they want…but it will also allow the defense one more tool in its appellate toolbox to push away political prosecutions and allow justice alone to blindly decide the fate of a former President.

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