“The wheels of justice grind slowly, but grind fine,” the aphorism goes. When it comes to the novel and, at times, appallingly unconstitutional “lawfare” that has been waged against Donald Trump, it looks like justice will indeed prevail.
The Supreme Court’s immunity decision this week was a huge victory for Trump. The court confirmed what our country has assumed for nearly 250 years — that presidents enjoy immunity from criminal prosecution for their official acts. It also means that prosecutors like Special Counsel Jack Smith and Manhattan District Attorney Alvin Bragg can’t even use in their prosecutions evidence related to Trump’s official acts as president.
The lawfare is unraveling in all of Trump’s cases. Trump’s opponents have, of course, gone apoplectic, but their vitriol against the Supreme Court is misplaced, given the moderate and constitutionally sound decision the court reached with regard to presidential immunity.
The common refrain against presidential immunity is that “no one is above the law.” But, while it’s a catchy phrase, this concept is woefully oversimplified.
The law applies differently to different people all the time based on status, position in life and many other factors. Many government officials are immune from criminal prosecution for their official acts. Presidents have unquestionably enjoyed immunity from civil litigation for official acts for almost 50 years. The justices have spoken and have said that, without broad immunity, vitriolic prosecutors and political opponents threaten the functionality and authority of the executive, and would likewise hamper the president’s ability to make decisions with fear of prosecution hanging over his head.
The American presidency is not a monarchy, and this decision does nothing to change that. As we celebrate our nation’s 248 years of independence from kings and queens, we should reflect on the brilliance of our democratic model of government.
The presidency remains the purest form of democracy we have in this country. Every four years, the president is subject to the vote of the people. If the sitting president is acting in a manner that the majority does not find palatable, the incumbent can be voted out.
The retort, of course, is obvious: “Didn’t Trump oppose this democratic process after the 2020 election, and shouldn’t he be jailed for that ‘attack on democracy?’” It’s time for this left-wing talking point to end. Whether you agree or disagree that the election was “stolen,” Trump peacefully left office on Jan. 20, 2021 and handed over the nuclear suitcase without incident. Even if he had convinced the electors and Congress to change their votes, the Supreme Court stood ready to pass judgment of the legality of his actions. It was not an attack on democracy, but our Constitution at work — and it worked out just fine.
Nevertheless, the panicked minds of the left took these allegations as an invitation to wildly criminalize conduct from the Oval Office for the first time in our nation’s history.
The dissenting justices continued to play into their fears. Justice Sonia Sotomayor now famously claims that, as a result of the court’s recognition of presidential immunity for “official acts,” presidents can now order SEAL Team 6 to assassinate their political rivals. This hypothetical is pure histrionics.
The left seems to think that “no presidential immunity” would somehow prevent a president from committing a crime. In reality, it would actually just be an avenue of recourse after the crime is committed. Even with the recent ruling from the Supreme Court, if a president were to engage in criminal acts, Congress could quickly expel them through the impeachment process which, if convicted, would almost certainly establish that the conduct was “unofficial” and therefore amenable to criminal prosecution.
Presidents have always been allowed to order the military to carry out questionable operations. Does Sotomayor think Special Counsel Jack Smith should be sitting in the Situation Room deciding whether to approve military action?
In ruling that a president enjoys criminal immunity for official acts, the court reminded us of its prior holding in Nixon v. Fitzgerald, where the justices determined the extent of the president’s civil immunity under the same standard. The court explained, “our dominant concern was to avoid diversion of the president’s attention during the decision making process caused by needless worry as to the possibility of damages actions stemming from any particular official decision.” The same rationale, they found, also obviously applies in the criminal context.
With the court’s reasonable and historically consistent ruling, all of the Trump prosecutions stand in peril. The decision has a huge effect on the Jan. 6 prosecution in D.C., but it should also overturn the verdict in the Manhattan criminal trial, because Bragg and his team used evidence from Trump’s time in office in the case, over the objections of Trump’s team.
Judge Juan Merchan is now considering a new motion to dismiss that case based on the immunity decision. Given his track record, he is likely to again rule against Trump before the new September sentencing date. But his ruling should be immediately appealed, which may lead to yet another delay in sentencing until after the election. Judge Tanya Chutkan is likely to deem some of the charged conduct in the D.C. case unofficial, which would clear the case to move ahead to trial, but that decision should also be immediately appealed all the way to the Supreme Court, which would push that trial well past the election.
If the Democrats want to beat Trump, they’re going to have to do it in the voting booth. That’s how our constitutional system is supposed to work. That’s exactly what the Supreme Court said this week as it dismantled the elaborate lawfare campaign.
Andrew Cherkasky and Katie Cherkasky are both military veterans, former federal prosecutors and current criminal defense attorneys. As co-owners of the civil rights law firm Golden Law Inc., they focus their legal practice on federal felony trial defense and appellate representation and other civil rights-related issues. They are authors of the book “Woke Warriors.”