The Constitutional Coalition and former United States Attorney General John Ashcroft filed an amicus curiae brief in the Supreme Court appeal Trump v. United States on March 19, 2024. After hearing oral argument, the Court issued its decision on July 1.
“Official Acts” vs. “Private Acts”
The Supreme Court overturned and reversed the lower court’s decisions and rejected the Biden Justice Department’s argument that the President of the United States, as a categorical matter, has no immunity from criminal prosecution for any “official acts” the President took while in office. The Court remanded the prosecution of President Trump to the district trial court to consider the four specific criminal statutes Biden’s Special Counsel, Jack Smith, alleged Trump had violated. The trial court was directed to determine whether these four alleged criminal violations were premised upon “official acts” or “private acts”.
All concerned agreed that a President’s “private acts” are not immune from criminal prosecution.
The Court further directed the trial court to determine whether the acts upon which the Special Counsel premised his criminal prosecution of President Trump were “official acts” that are an exercise of the President’s “core constitutional powers” within the President’s “exclusive” authority under the Constitution. Or, were the “official acts” that were the basis of the criminal prosecution, “official acts” for which the Constitution does not vest the President with exclusive authority as “core constitutional powers” of the Presidency. “Official acts” that are “acts pursuant to an express or implied authorization of Congress”.
In short, the Supreme Court held the President has “absolute immunity” from criminal prosecution for official acts that are within the President’s exclusive core constitutional authority. Congress and the Judicial Branch may not criminalize or prosecute the President or a former President for acts in this category of “official acts”.
As for the other category of “official acts” -- those the President takes that are not “exclusively” vested as part of his core constitutional authority -- the Court held that the President enjoys a “presumption of immunity”. However, this presumption of immunity may be overcome or rebutted upon a sufficient showing of evidence. The Court further held that the President’s motive for official acts within the category is not a basis upon which to overcome the presumption of immunity.
Attorney General Ashcroft and The Constitutional Coalition’s Amicus Brief
In our amicus brief, former Attorney General John Ashcroft and the Constitutional Coalition argued strongly in support of the need for the President to have immunity from criminal prosecution from any official act, especially those exclusively vested with the President such as acts related to the role as Commander-in-Chief. When executing his sworn constitutional duty to “faithfully execute the laws” the President cannot be restrained by a fear that a political opponent will prosecute him criminally for those official acts he took and directed during his tenure in office. A majority of the Supreme Court agreed with us on this essential point.
Transcending current politics
Chief Justice John Roberts wrote the majority opinion joined by Justices Thomas, Alito, Kavanaugh, Gorsuch, and Barrett. Justices Thomas and Barrett authored concurring opinions. The liberal Justices, Sotomayer, Kagan, and Jackson filed a dissent. The full text of the Supreme Court’s decision and concurring and dissenting opinions is available on the Constitutional Coalition’s website.
In essence, the Supreme Court was faithful to the constitutional principles (especially the doctrine of the Separation of Powers) and Rule of Law upon which this Nation was founded. As Justice Gorsuch declared during oral argument, the Supreme Court’s opinion is one that is a “decision for the ages” on the order of Chief Justice Marshall’s decision in Marbury v. Madison. The opinion in Trump v. United States transcends the immediate political environment and the 2024 Presidential Election.
The Supreme Court’s decision undermines the Democrat’s lawfare strategy. On an immediate practical level, the decision puts an end to President Biden and the Democrat party’s lawfare strategy to criminally prosecute President Trump. In the long term, it sets precedent for curtailing this corruptive, unconstitutional strategy.
Analysis of the Majority and Dissenting Opinions
Chief Justice Robert’s majority decision held: (a) The Biden Justice Department and the lower courts were wrong to claim that no President (past, present, or future) had any immunity from criminal prosecution for any official acts a President took during the President’s tenure in office; (b) That the “official acts” a President took while in office that were within the President’s “exclusive” and “core constitutional” authority were subject to absolute immunity from criminal prosecution by the Judicial and Legislative Branches; and (c) that those official acts the President took, or directed to be taken, that were “official acts” but were at the margin of the President’s exclusive core constitutional powers were “presumptively” subject to immunity but the immunity could be rebutted.
“Like everyone else, the President is subject to prosecution in his unofficial capacity. But unlike anyone else, the President is a branch of government, and the Constitution vests in him sweeping powers and duties. Accounting for that reality—and ensuring that the President may exercise those powers forcefully, as the Framers anticipated he would—does not place him above the law; it preserves the basic structure of the Constitution from which that law derives.” -- Chief Justice Roberts
Justice Thomas went further to point out that special counsel, Jack Smith, is a private citizen employed by Attorney General Merrick Garland and is not a “government official” with the constitutional authority to prosecute the President. Former Attorneys General Michael Mukasey and Ed Meese made this argument in their amicus brief.
Justice Thomas also noted the point that Ashcroft and The Constitutional Coalition made in our amicus brief. Specifically, that “if this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people. The lower courts should thus answer these essential questions concerning the Special Counsel's appointment before proceeding.”
Justice Barrett concurred in that she believed the official acts subject to absolute presidential immunity did not extend to President Trump’s advocacy that the states’ alternative slates of Presidential Electors be accepted by Congress upon certifying the results of the 2020 Presidential Election. Other than this point, Justice Barrett agreed with the majority.
The three liberal Justices, Sotomayor, Kagan and Jackson, dissented. Their dissent was hyperbolic, creating an effigy of the majority opinion that bears no resemblance to the Supreme Court’s actual decision.
Excerpts from the Justices’ dissent:
“The Court now confronts a question it has never had to answer in the Nation's history: Whether a former President enjoys immunity from federal criminal prosecution. The majority thinks he should, and so it invents an atextual, ahistorical, and unjustifiable immunity that puts the President above the law.”
“Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority's message today.”
“Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.”
It is worth noting, again, that all involved (the majority, the dissent, President Trump, and Biden’s Special Counsel) agreed that the President enjoys no claim of immunity for private acts. This case is not about whether the President is “a king” or the President is “above the law”. That is not what anyone agreed nor is it what Chief Justice Roberts’s majority held.
Justice Jackson added an additional dissent claiming Chief Justice Roberts’s majority opinion is “a five-alarm fire that threatens to consume democratic self-governance and the normal operations of our Government.”
Much of this hyperbole has been echoed and parroted by the liberal left and media in their analysis of the Supreme Court’s decision.
Conclusion
Trump v. United States is a decision for the ages that concerns foundational constitutional doctrines upon which our republic is established. The amicus brief former Attorney General Ashcroft and the Constitutional Coalition authored contributed to the Supreme Court reaching the proper resolution – especially on the need for the President, as Chief Executive, to have immunity from criminal prosecution for “official acts” the President takes during his tenure in office. Our amicus brief demonstrated the historical precedent for this doctrine. This was a point four of the justices noted during oral argument. The amicus brief also noted the danger that the lack of presidential immunity presents because it invites the political lawfare our nation is now experiencing.
The Supreme Court’s decision is one that wisely preserves the Separation of Powers and the legitimate role of the President as Chief Executive of the Executive Branch. The majority’s decision will also curtail the Left’s abuse of the judiciary and criminal prosecution of political opponents. These are very good results for the future of our constitutional republic.
-- Written by Thor Hearne