Opinion: Less is more: The Supreme Court should not decide immunity ‘for the ages’

Opinion: Less is more: The Supreme Court should not decide immunity ‘for the ages’

After listening to two and half hours of oral argument in the Donald Trump immunity case, it is perfectly clear what the Supreme Court should decide: namely, as little as possible.

In other words, the Supreme Court should set a different tack for themselves than making an immunity decision “for the ages,” as Justice Neil Gorsuch suggested. Instead, the court should keep it simple, treat the Trump immunity decision as the easy “non-official” electioneering case that it is and avoid making a definitive, complicated and time-consuming ruling on presidential immunity to address other conceivable circumstances..

The more the Supreme Court decides in the Trump immunity case, the greater the chance it will disrupt the balance of power among the branches and torque current understandings unpredictably and unnecessarily. Better for the court to decide narrowly that:

(1) there is no absolute criminal immunity for presidents;

(2) a president who uses any means (including ostensibly or tangentially official means) to overturn an election to stay in office is engaging in quintessentially personal, political electioneering: and

(3) whether future presidents are entitled to any criminal immunity for core, outer-perimeter or any other official acts will be determined based on the specific circumstances presented and constitutional values at stake.

No one, not even the Trump lawyers, claims that electioneering is entitled to any immunity at all. Given that, the district court is perfectly competent to decide at trial whether defendant Trump essentially continued his campaign for reelection by engaging in the election-subverting conduct alleged in special counsel Jack Smith’s indictment.

Until Trump, with perhaps the exception of Richard Nixon, no president or citizen believed a president was above the criminal law. Accordingly, presidents — like the one I worked for, Ronald Reagan — cooperated extensively (if sometimes grudgingly) with highly intrusive criminal investigations of their own conduct in office.

In what’s known as the Iran-Contra affair, conduct involving unmistakable official foreign policy powers of the president was subjected to intense criminal scrutiny; that affair actually concerned selling arms to Iran in exchange for American hostages as part of a presidentially authorized covert action as well as funding the Nicaraguan Contras to carry out a key element of President Reagan’s anti-Marxist foreign policy agenda.

Invoking presidential immunity was off the table in Iran-Contra — both in the public mind and in the White House. Success for White House lawyers was ending up with a client who was neither impeached nor indicted — which is how it turned out. In contrast, it notably did not work out well for prior, politically motivated president who invoked presidential immunity to avoid producing tape recordings from the Oval Office: Nixon in Watergate. He failed in the Supreme Court, where the justices famously rejected his claim to an “absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.”

So, why should the Supreme Court now engage in minute parsing of various hypothetical circumstances that might or might not warrant plenary or partial presidential immunity?

The answer is plain: it shouldn’t. By not attempting to answer the question of presidential immunity question broadly, the court will neither chill nor embolden the authority of future presidents.

In the absence of detailed exegesis by the Supreme Court, would-be presidents will continue to assume what past presidents have assumed: that they are not above the criminal law, and if they act egregiously enough, they could answer for it in a criminal court after they leave office.

This is precisely what Donald Trump’s impeachment counsel Michael van der Veen argued to the Senate in its trial of Trump’s second impeachment. And it was how Republican Leader Mitch McConnell explained his vote not to convict after that trial. This is also what Nixon assumed when he accepted President Ford’s pardon, and likely what other presidents understood when they cooperated with rather than stonewalled their respective special prosecutors.

Here, the Supreme Court can avoid changing settled understandings as well as constitutionally useful uncertainties by resolving the proceeding narrowly. It can do so readily by conceiving the nature of the present dispute for what it manifestly is — a case concerning only the legality of a candidate’s election-related practices.

Attempting to subvert an election is logically on a continuum of campaigning for the office in the first place and then contesting disappointing results afterward. In a nutshell, subversion is electioneering taken to its criminal extreme.

So why should the Supreme Court belabor the Trump immunity decision by chasing down platonic ideals for what is an immunity-worthy “official act”? The challenge of distinguishing official versus unofficial acts here is a red herring. Trump was merely an office seeker seeking to remain in office, by hook or by crook. He tried to win the election by persuading the voters. When that didn’t work out, he tried politics by other means — subverting the electoral process.

Trump’s arguable incorporation of some official means to achieve his subversion does not transform purely personal, political conduct into official business any more than using Air Force One to travel to a campaign rally or relying on the Secret Service and White House advance staff to manage the political event. A president’s electioneering (i.e., campaigning for himself) is never official business.

There is nothing controversial about this proposition. In 1982, Ted Olson, then assistant attorney general for the Office of Legal Counsel, opined exactly that. In his OLC opinion, Olson acknowledged that just about everything a president does contains a political element (cajoling Congress, sweet-talking the public, puffing up policy, etc.), and is undertaken with an eye to the next election. But some political activity by presidents such as “campaigning for specific candidates” (like the president himself) is not official at all — it is “entirely political.”

In the case at hand, even former President Trump’s able Supreme Court advocate, John Sauer, conceded at oral argument that action undertaken for the president’s direct electoral benefit would constitute political, not official, activity. He stated clearly that “affirming false election fraud allegations made on [Trump’s] behalf” would be indisputably “unofficial.”

So less here is more. The shorter and simpler the court’s immunity decision, the more commonsensical and norm-preserving it will be. Send the case back to the District Court with terse direction to determine at trial whether Trump’s conduct, as proven, entailed electioneering to remain in office by hook or by crook. If the court does that, and only that, future presidents will be neither chilled nor emboldened in the effective discharge of their public duties. Rather, they will just know that, as candidates for office, they are not above the law.

Alan Charles Raul served as associate White House counsel to former President Reagan. He currently practices law in Washington, D.C., and serves as lecturer at Harvard Law School, and as board secretary of the Society for the Rule of Law.

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