www.montereycountynow.com july 4-10, 2024 MONTEREY COUNTY WEEKLY 19 the United States of America, Trump sued the federal government seeking immunity from criminal charges, claiming protection from prosecution for official actions taken as president. That case, on whether or not Trump is entitled to immunity, went to the U.S. Supreme Court, which issued a 6-3 ruling (along partisan lines) on Monday, July 1 in Trump’s favor. The ruling, written by Chief Justice John Roberts, parses “official” from “unofficial” acts, and determined that American presidents are immune from prosecution for official acts. The justices threw out a lower court ruling determining that presidents are not immune from criminal prosecution. But the ruling on July 1 sends the case back to the lower courts to decide whether Trump’s actions on Jan. 6 were official or unofficial. Whatever the ultimate outcome of Trump’s case, the brief that follows in support of the DOJ’s argument lays out some of the dangers associated with granting presidential immunity from criminal prosecution. The brief—an amicus, or friends of the court brief—was filed in April on behalf of 14 national security professionals in support of the U.S. government’s case. (Trump is repeatedly described as “the petitioner.”) The brief is cut for length, and citations have been removed. You can read the brief in its entirety, along with other documents in case 23-939, in the docket at supremecourt.gov. The Supreme Court’s decision has major implications not just for Trump, but the underlying principles of accountability for elected American leaders and for the peaceful transfer of power based upon the results of free and fair elections. In a dissenting opinion, Justice Sonia Sotomayor wrote: “[The] decision to grant former presidents criminal immunity reshapes the institution of the presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.” Those are principles—in theory, at least—that we honor and celebrate especially on the Fourth of July, Independence Day. -Sara Rubin, editor Petitioner (Donald J. Trump) argues that as former president of the United States, he is immune to all criminal charges, even after leaving office. He asks this court to embrace a theory of presidential authority, according to which no prosecutor or court can hold a former president accountable for either private or official capacity crimes committed while he is in office, and he claims this blanket immunity should endure permanently, including after a president has left office. This court must unequivocally reject the proposed doctrine of presidential immunity and leave no doubt in the minds of petitioner, the public, and all future occupants of the Oval Office that the president, like all individuals subject to the reach of the U.S. legal system, is not above the law. Of particular concern is the potential adverse impact of presidential immunity on the principle of military obedience to civil authority, the foundation for our civil-military relations since the inception of the Republic. Allowing a president to issue orders requiring subordinates to commit criminal acts or omissions would wreak havoc on the military chain of command and result in an erosion of confidence in the legality of presidential orders. It would also create the potential for disparate interpretations of the duty to obey orders, thereby risking military discipline. While the duty of obedience does not extend to patently illegal orders, an order issued by the president himself would exert a powerful gravitational pull and thus even if of dubious legality would create uncertainty in the ranks. Holding everyone in the chain of command, including the president, to the same principles of accountability under the criminal laws of the United States is essential for assuring the legality of military orders and for providing the reassurance for all levels of the chain of command of that legality. Any form of immunity doctrine is both unnecessary to protect the interests of the presidency and ultimately dangerous for U.S. national security. This court should reject petitioner’s theory of absolute criminal immunity and should resist any temptation to adopt a weaker version of this same doctrine in the form of a qualified immunity doctrine. The principle that “No Person is Above the Law” is the bedrock of U.S. national security. To protect against enemies, both foreign and domestic, the Framers of the U.S. Constitution imbued the office of the presidency with extraordinary powers. Important among these is the president’s role as Commander-inChief of the armed forces and state militias when called into federal service. As this court has recognized, it is the rare case in which it would be appropriate for the judiciary to interfere with exercises of Commander-inChief authority. This court has rightly adopted a broad attitude of deference towards executive branch action in matters of war powers. However, when that authority is turned “inward” and exercised toward domestic ends, federal courts have been more than willing to reject the legality of presidential action. The U.S. Constitution establishes two primary safeguards to protect against the risk of a runaway presidency. First, a president cannot continue in office without being reelected. Second, the Constitution provides that a president may be removed from office by a vote to impeach in the House and a two-thirds vote to convict in the Senate. Yet these two safeguards are not sufficient to protect the country from the risk of dictatorship, since a truly corrupt president might attempt to commit crimes to manipulate the vote as well as to deprive the impeachment process of effect. This suggests that the basic principle that the president must comply with the law, on pain of criminal sanctions following conviction for an alleged offense, is an even more fundamental check on the presidency than either the vote or impeachment, since it serves as the protection for those two constitutional safeguards. Put otherwise, the principle that no person is above the law serves as the ultimate protector of U.S. democracy, since it underpins the constitutional safeguards against destruction of the Republic by authoritarian forces within. The concept of immunity is antithetical to that critical principle. On at least four occasions justices of this Court have articulated the critical principle that no person, including the President, is above the law. The first time was in 1807 in the case of United States v. Burr, in which Chief Justice Marshall held that President Thomas Jefferson was amenable to criminal subpoena issued in the treason trial of his former vice president, Aaron Burr. The second time was in 1974, at the height of the Watergate crisis, where this court said that President Richard Nixon must comply with a prosecutor’s subpoena of White House tape recordings. The third time was in 1997, where this court held that President Bill Clinton is amenable to civil suit for personal conduct involving sexual harassment while he previously held a state office. The fourth time was in Trump v. Vance, in which this court There is a difference between acts that are actually criminal and acts that are merely said to be criminal by political adversaries. on Trial
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