TOM RENZ: Trump In the Supreme Court – He IS Immune and NO He Does NOT Have a “License to Kill” | Joe Hoft

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TOM RENZ: Trump In the Supreme Court – He IS Immune and NO He Does NOT Have a “License to Kill”

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Trump In the Supreme Court – He IS Immune & NO He Does NOT Have a “License to Kill”

Reprinted with permission from Tom Renz

The Supreme Court of the United States has made a lot of news recently, but no decision has made bigger news than the Trump immunity case. Not surprisingly the news around this case is as varied as the political views in America are, but more surprisingly, some of the lies and mischaracterizations of this decision have come from people that are typically more credible… including even some of the justices of the SCOTUS themselves. At the risk of making myself unpopular, I want to share some actual information on this case.

Let me begin by stating, for the record, I think Roberts and the majority did a very good job on a case that was both politically and legally difficult. It is very easy for Monday morning quarterbacks to look at SCOTUS decisions and tell everyone how they would do it better but that only occurs AFTER these guys put out the decision. That decision is most frequently attacked for political reasons and is frequently done by cherry picking language from the opinion and arguing it out of context. In this case, the political pressure was immense from both sides and I think the majority managed to provide a measured response to a difficult question that was consistent with precedent and the Constitution.

The first thing to understand is that this decision was based almost entirely on separation of powers. The concept of separation of powers is well described (though not explicitly specified) in the Constitution and universally accepted as law. What it means is that the Constitution defines the roles and responsibilities of the three branches of government and that those branches should not interfere with each other. For example, the president cannot introduce a law for Congress to vote on. He can suggest it, he can advocate for it, but congress makes the laws. Another example is that Congress cannot deploy the military – the President is the only commander in chief. While there are numerous examples and implications of the principles of separation of powers, the take away is that the various branches cannot play in each other’s sandboxes.

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The second thing to understand is the law that our nation is founded upon. All law is simply a manifestation of the intent of the governed. The Constitution represents a law that all Americans have agreed to be governed by, by nature of being citizens of this nation. This does not mean each person has agreed individually, but rather, that as a collective, our forefathers agreed to create a nation from which all legal authority would extend from the structure laid out in the Constitution and that until and unless we amend that Constitution it remains the supreme law of the land.

As such, any law created that is contradictory to the Constitution is invalid and part of the law created in the Constitution is the separation of powers. Understanding this premise necessitates recognition that violating the separation of powers is impossible under the Constitution because no branch of government has authority to do so. This absolutely extends to the courts and that is the basis for the Trump decision.

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For a court to prosecute a president for an official act, that would imply that the court would have authority over those official acts. It does not and cannot. There is no valid or applicable interpretation of the Constitution that would grant a court authority over the behavior or actions taken by a president. That does not mean a president can get away with anything and it does not preclude a court from interpreting the Constitution to determine which acts may or may not be official, but for official acts that are delegated to the president it is clear, based on this reasoning, that no court would have authority to review official acts by a president any more than a court would have authority to mandate that congress make a law.

While this reasoning is quite clear and incontrovertible, the SCOTUS has already recognized its applicability in a previous case Nixon vs. Fitzgerald. The syllabus for that case summarizes relevant law and interpretation by stating:

The President’s absolute immunity is a functionally mandated incident of his unique office, rooted in the constitutional tradition of the separation of powers and supported by the Nation’s history. Because of the singular importance of the President’s duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government. While the separation-of-powers doctrine does not bar every exercise of jurisdiction over the President, a court, before exercising jurisdiction, must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch. The exercise of jurisdiction is not warranted in the case of merely private suits for damages based on a President’s official acts. Pp. 748-754.

This case was about civil damages and recognized long ago that a president’s official acts were protected from review due to the principles separation of powers. If a president is protected from lawsuits for official acts under the principles separation of powers because “diversion of his energies by concern with private lawsuits…” how much more would this apply to criminal prosecution for official acts? This seems especially relevant in light of the highly politicized nature of this prosecution and others that, as noted in the dissent, appear to paint “a stark portrait of a President desperate to stay in power.” (I took this out of context intentionally as the dissent in this case simply used the power of their position to make a political statement rather than to provide a legitimate legal argument).

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Beyond official acts, the Court took then went on to put its foot down on the absurd politicization of the justice system. They did not explicitly state their intent but the language the Court used was telling. Extending the presumption of immunity for official acts to the outer perimeter of presidential authority means the SCOTUS does not want to see politically motivated cases. If a case is being brought against a former president for acts that occurred while they were in office the prosecution will be required to demonstrate that those acts were objectively outside the realm of “official acts” prior to the case moving forward. This will prevent politicized prosecutors from wasting time and resources by forcing them to bring real, non-political cases. Essentially it appears that the Court just told the Biden Administration that the American justice system is NOT a political plaything when it comes to persecuting political enemies… at least as it applies to former presidents.

There was a LOT more to this decision. The Court stated that lower courts have to begin by determining whether an act was official or not, lower courts may not consider motivations in making the determination of whether an act was official or not, immunity does not apply to unofficial acts, etc. but the last and most important point I want to make here is about this absurd “license to kill” nonsense. This came from what I would deem to be the most irresponsible and political dissent I’ve ever read. Justice Sotomayor actually stated that if a President, “Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organises a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.” On a side note, it is worth noting that most of this quote – minus the assassination nonsense – actually may apply to Biden.

This is an absurd mechanism of twisting the majority holding in this case to put forth a false narrative based on fear. When a jurist analyzes whether any elected official can be sued or charged the initial analysis includes questions of immunity. Under the majority holding, a presumption of immunity is strongly given but under the absurd example of an assassination of a political rival the courts would likely undertake an analysis similar to that which occurs with regards to a 42 USC 1983 action. In a 1983 action the court will analyze “qualified immunity.” The test is two part and first asks if a right that is allegedly violated is clearly established and the second asks whether a reasonable person would have understood that the right was established and being violated (I’m oversimplifying here).

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If I am correct, as applied here, the court would analyze whether a President believed assassinating a political rival was within the scope of his or her “official duties” and then ask whether that was a reasonable interpretation in light of the relevant facts not including motive. While the Court is silent as to whether my interpretation of the analysis that would be applied is correct, I find it difficult to believe that a president that was assassinating political rivals could ever make a valid case that he or she believed that to be within the outer perimeter of presidential powers. In fact, I’d go so far as to state that to even include this nonsense in an opinion from the highest court in the land demonstrates a wild misunderstanding of the law and Constitution as it is typically applied in this country.

When you peel away the political nonsense related to the Trump decision, the majority did a good job. There is room to deal with an unlawful president if they are acting outside the scope of their official duties but the standard is rightfully high. Under the Constitution the judicial branch simply does not have authority to second guess how the executive branch carries out its duties. Only when a president clearly goes beyond the scope of those duties may the judiciary step in. Constitutionally this makes complete sense but, as we have seen for the past 4 years, some jurists and many on the left don’t care about the Constitution and simply think the law should be a tool to promote their own ends.

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1 thought on “TOM RENZ: Trump In the Supreme Court – He IS Immune and NO He Does NOT Have a “License to Kill””

  1. Your writing has a way of resonating with me on a deep level. I appreciate the honesty and authenticity you bring to every post. Thank you for sharing your journey with us.

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