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The U.S. Supreme Court is being set up for renewed criticism, through no fault of its own.
I firmly believe that respect for the courts, and in particular the U.S. Supreme Court, is essential for the preservation of civility in our society. Unfortunately, over the last few decades, the public’s respect for the court has significantly diminished.
The 2000 Bush v. Gore decision, derided by the left as political activism, initiated an atmosphere of mistrust of the court and skepticism about its motives. The court, whose credibility has been further eroded of late for a variety of reasons, is now on the verge of being forced into a situation likely to exacerbate that mistrust, because of constitutional issues emanating from the accusations surrounding former President Donald Trump.
Two issues are headed toward the Supreme Court soon. One is Trump’s claim of absolute immunity for any sitting or past president, which was argued before a three-judge panel of the D.C. Circuit Court of Appeals earlier this month.
This particular claim should never make it to the Supreme Court. A well-considered opinion by the trial judge—asserting that former presidents do not have the “divine right of kings” to avoid prosecution for their criminal acts—was appealed by Trump, leading to this month’s arguments before the court.
Ludicrously, Trump’s lawyer argued that a former president cannot be prosecuted, even for criminal misconduct while in office, unless he is first impeached and convicted by the Senate. The space allotted to this column does not permit me to describe in how many respects this assertion is not only impractical but in fact dangerous. As Judge Florence Pan pointed out, to accept Trump’s logic would mean he could sell military secrets or order assassinations but never be subject to prosecution.
There is no precedent for this position; even the U.S. Justice Department’s determination that a president cannot be indicted while in office clearly states that failure to convict upon impeachment has nothing to do with the constitutional permissibility of a post-presidency prosecution within the court system (note that many senators voted against conviction on the Jan. 6-related impeachment in reliance on the availability of the criminal process)—and it refers only to sitting, not former, presidents.
There is no scenario in which the appeals court will accept Trump’s claim of immunity. A well-reasoned decision by the panel—better yet, followed by that of a unanimous en banc panel (the full court)—would give the Supreme Court the out it needs: It can decline to accept the case, letting the appellate decision stand.
The other issue headed the justices’ way might be harder to avoid. The Colorado Supreme Court and the Maine secretary of state have made determinations that Trump is ineligible to be on the presidential ballot because he, in their respective opinions, engaged in insurrection.
Legitimate questions surround such a determination, including: Who gets to decide the factual issue of whether Trump is guilty of insurrection, excluding him from the electoral process? A single secretary of state? Four judges, with three dissents? Should it be a unanimous jury in a criminal case? The Congress, through impeachment and conviction?
It is a dangerous business for the Supreme Court to put its toe in these waters. But it might be forced to, because of the varying decisions being made by individual states and the need for a legal determination that will govern the entire country. If the court accepts these cases, it might further endanger its reputation no matter its decision.•
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Daniels, an attorney with Krieg DeVault LLP, is a former U.S. attorney, assistant U.S. attorney general, and president of the Sagamore Institute. Send comments to ibjedit@ibj.com.
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