Trump immunity decision shows that conservative ‘originalism’ is a farce

Let’s consider what the Constitution actually says about immunity.

In Trump v. United States, the Supreme Court’s far-right majority showed Americans once again that “textualism” and “originalism” are a ruse.

Writing for a 6-3 majority, Chief Justice Roberts announced that presidents have a presumption of absolute immunity from criminal prosecution for official acts. He identified a handful of obvious official acts that underpin Special Counsel Jack Smith’s four-count indictment of Donald Trump for his actions relating to the Jan. 6 Capitol riot, which must therefore now be excised from the case — while at the same time refusing to draw any lines for unofficial acts, instead punting that question to the lower courts for the justices to resolve in an inevitable appeal another day.

In her outraged dissent, Justice Sonia Sotomayor faulted the majority for morphing the presidency into a monarchy, precisely what the founding generation fought to reject. Justice Ketanji Brown Jackson penned her own dissenting opinion, pointing out that it’s not just the president whose powers are now too close to that of a king. It’s the power of the Supreme Court itself: “the risks (and power) the court has now assumed are intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms,” she wrote.

Jackson is on to something — especially because the conservative justices purport to follow a constrained approach to the Constitution. Rather than reading new stuff into the document like progressive judges do, the right-wing justices consistently claim, they focus on the precise text of the document and the Framers’ original intent when it was ratified in 1788. That way, the theory goes, judges stay in their lanes and don’t take on power that isn’t rightly theirs.

Let us consider what the Constitution actually says about immunity.

Article II gives the president his job description, making him “commander in chief of the Army and Navy of the United States, and of the militia of the several states.” He can “make treaties” with the advice and consent of the Senate; appoint federal judges, executive branch officers and other officials; “take care that the laws are faithfully executed”; and pardon federal crimes. The Constitution is clear that he can be held accountable for violating the rule of law — he “shall be removed from office on impeachment for, and conviction of, treason, bribery, or high crimes and misdemeanors.”

There’s nothing whatsoever in the Constitution about immunity for presidents, unlike for members of Congress under the Speech and Debate Clause. In other words, the Framers knew how to afford immunity to federal officials when they wanted to. They didn’t give it to presidents.

A true textualist might be expected to leave things there and reject Trump’s claim of immunity from prosecution for official acts as president.

Under Article I, which sets forth Congress’s respective powers, the Constitution goes on to state that “the Party convicted” upon impeachment — which includes impeached presidents — “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

The Framers thus took pains to state in plain English that presidents, even after being impeached, can be indicted, tried, convicted and punished for committing crimes. Again, a true textualist might be expected to leave things there, and reject Trump’s claim of immunity from prosecution for official acts as president.

If that weren’t enough, a true conservative might then look to the Framers’ original intent for definitive guidance, which Jackson highlights in her dissent. Most American middle schoolers know that presidents aren’t kings, so this should be an easy one. Jackson quotes John Adams, one of the Founding Fathers and the second president of the United States, who enshrined in the Massachusetts Declaration of Rights (which became a model for adoption of the U.S. Constitution) the foundational notion of “a government of laws and not of men,” whereby “every act of government may be challenged by an appeal to law.”

But as Jackson rightly noted: “From this day forward, Presidents of tomorrow will be free to exercise the Commander-in-Chief powers, the foreign-affairs powers, and all the vast law enforcement powers enshrined in Article II however they please — including in ways that Congress has deemed criminal and that have potentially grave consequences for the rights and liberties of Americans.” The majority provides no textual or original authority for this sweeping new power for presidents.

Chief Justice John Roberts, to his credit, engages with the dissents’ critiques. He argues for a strict reading of the separation of powers, pointing out that Congress has no legislative authority to constrain the president’s core powers under Article II — including through the criminal laws. But Congress can constrain the powers of the other branches. The Constitution separates the power of the branches but also sets up checks and balances — no branch, in theory, is above the law, because there are built-in ways each branch is held accountable by the other two and, ultimately, the voters. The majority shattered that originalist concept today.

Roberts deems “unpersuasive” the argument that the Constitution is silent on presidential immunity, saying “there is no ‘separation of powers clause,’ either.” But that’s a flawed distinction — the separation of powers is the name that’s been attached to the fact that, in the text, the Framers specified three branches of government in lieu of an all-powerful king.

As for the dissenting justices’ point that the Impeachment Clause expressly references criminally indicting impeached presidents, Roberts bootstrapped his own ruling. To Roberts, the fact that the clause doesn’t say anything about whether presidents can be prosecuted for official conduct means that the Impeachment Clause answers little. But isn’t impeachment itself about conduct taken by presidents using their official powers?

Roberts’s argument is utterly circular, and tosses aside the conservatives’ purported adherence to the plain text and meaning of the Constitution. Roberts then accused the dissenting justices of “cherry-picking” statements from the Founders, concluding obtusely: “Given the Framers’ desire for an energetic and vigorous President,” their argument against prosecutorial immunity, Roberts wrote, “defies credulity.”

In this regard, Roberts seems to have plucked a page from Trump’s political playbook: charge the other side with exactly what you are doing.

Kimberly Wehle is author of “How to Read the Constitution — and Why.” Her forthcoming book, “Pardon Power: How the Pardon System Works — and Why,” will be out in September.