In the Supreme Court decision about immunity, who really won? The answer is obvious: the doctrine of separation of powers. The high court's common sense holding simply extended the same legal protection to presidents that is already enjoyed by legislators and jurists.
It's well settled in law that those in the judicial and legislative branches have significant immunity from lawsuits or prosecutions based on their official actions. Indeed, the Constitution's Speech or Debate Clause, shields members of Congress from legal harassment or even criminal prosecution based on things they do as part of their legislative responsibilities. This deters the executive branch from using sham or vituperative legal process to achieve political results. Judges have their own brand of immunity, for the same reason.
Like a moat surrounding a government fortress, immunity from legal liability deters the most common assaults of those with ill intent. This ultimately protects every American since, in the case of civil lawsuits, taxpayers ultimately bear the money damages paid by the government. In the case of criminal prosecutions of current or former government officials, some form of immunity is necessary to shield our leaders from political interference by other government actors with partisan or devious motives.
This week's decision would have been met with a legal "well, duh," had it been made prior to our entire political discourse revolving around ardent love or desperate hatred of a single political player. Nonetheless, in the wake of this decision, former President Donald Trump's foes are fulminating, and his supporters are cheering.
But the constitutional long view encourages everyone to calm down and sip a cool drink.
The Supreme Court simply concluded that immunity for a president extends to actions presidents do to advance their duties of office. While this is a long list, the majority opinion acknowledged that a president could face criminal liability for unofficial acts wholly unrelated to the presidency.
For all the doom and gloom in the dissent, the Supreme Court merely stated the obvious and sent the case back to the district court, instructing it to weigh the facts and evidence to determine if Trump's acts in the case were official or unofficial in his role as president. If that means he will avoid prosecution in the mistake-ridden case against him in the District of Columbia, that's just the way the separation of powers ball bounces.
Despite the partisan 6-3 split, the majority determined that presidential immunity is narrower than what Trump claimed and broader than what President Joe Biden's Justice Department argued. This result makes sense to most legal scholars who aren't wearing a red or blue jersey underneath their natty political TV show attire.
The court ruled that, when any president acts within his official authority, "Congress cannot act on, and courts cannot examine, the President's actions." Biden should cheer this ruling because, when he leaves office, he will enjoy the same protection from legal actions taken against his many breaches of the Constitution.
In constitutional law, the presidency and Congress are called the "political branches" because voters decide who serves within them. The judiciary, replete with judges who essentially have lifetime tenure, was designed to be far less political. This allows its decisions to be viewed through a different lens than the initiatives put forth by those who grub for votes and fervently pour through public opinion polls praying for public acclaim and vindication.
And—speaking of the political theater kids—cue the overheated and irresponsible attacks on the court. Within a few hours of the decision, Senate Majority Leader Chuck Schumer, the highest ranking Democrat in Congress, called the Supreme Court a "MAGA" court. Biden has launched similar petulant attacks on the court when he doesn't get what he wants. Luckily, the founders anticipated such weasel antics.
In Federalist 78, Alexander Hamilton pointed out that the Supreme Court is vulnerable to attack and—ironically, given Biden's intimidation tactics—actually relies on the president to defend its work. He said the high court "has no influence over either the sword or the purse ... and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."
Today's ruling was simply the Supreme Court continuing to uphold its constitutional role. The Supreme Court should be admired for defending that role, despite the braying of political bullies.
This case won't end the lawfare effort to defeat Trump in forums other than a national election, but it will, as Justice Neil Gorsuch predicted, speak to the ages. And that's important, while this flows against the frothing rapids of the current political maelstrom, soon enough, neither Trump nor Biden will be on the political stage. New leaders will occupy the Oval Office and this decision will still stand.
Mark R. Weaver is a prosecutor and formerly served as a Justice Department spokesman and Deputy Attorney General of Ohio. He is the author of "A Wordsmith's Work." X: @MarkRWeaver
The views expressed in this article are the writer's own.
Uncommon Knowledge
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
