Recently, I nerded out and read the complete majority and dissenting opinions of the Supreme Court for Trump v. United States concerning presidential immunity from criminal prosecution.

A six-justice majority determined that presidents have absolute immunity from prosecution for “official acts” while in office, but no immunity for “unofficial acts.” 

The majority provided almost no guidelines as to how to define official vs. unofficial acts, deferring those decisions to lower courts subject to further appeals.

The primary reason for the majority decision was that the justices did not believe a president should be constrained in their actions and decisions due to a fear of latter prosecution. Their primary concern was that the law could be cumbersome to a president’s objectives and intents. 

Don’t we all find the law cumbersome to our personal wants and impulses?

While acknowledging that the U.S. Constitution doesn’t specify immunity for official act, the majority basically argued this was an oversight because the Founding Fathers didn’t foresee that presidents might face prosecution for their actions, even those that are criminal.

In essence, the same majority that reversed Roe v. Wade because the Constitution didn’t explicitly protect abortion rights has created immunity protection that isn’t explicit in the Constitution.

Here are some simple and logical arguments a majority of our justices ignored. 

We have now had a president for 237 years and counting. Not once has a president complained of constraints in the performance of their duties due to a fear of latter prosecution.  In fact, there is a clause in the Constitution that specifies impeachment can be followed by prosecution.  This is why President Gerald Ford pardoned President Richard Nixon after Nixon’s resignation – to protect Nixon from criminal prosecution.

Our Constitution does specifically define limited immunity for the speech of members of Congress, except for speech related to “Treason, Felony or Breach of Peace.” Our Founding Fathers clearly considered immunity yet purposefully did not extend immunity to the president.

In 118 pages, our Supreme Court offers almost nothing to help define official vs. unofficial acts, pushing this back to lower courts.

The charges President Trump is facing stem from Jan. 6, 2021, at the U.S. Capitol and include an extensive investigation by the House that concluded there was a planned insurrection to overturn the results of the 2020 presidential election.

To support their conclusion that official acts must have immunity, the majority could have used specific examples of the case to illustrate why or to define distinctions.  

Some justices may die off before we ever learn what a protected official act is or isn’t. We are a nation polarized over the subject of this case for over three years without a clear path forward. Now, our Supreme Court has added to the doubt and ambiguity with an even more indefinite timeline for when we can arrive at a conclusion and move forward.

Imagine President Joe Biden calling a press conference on the steps of the Supreme Court while they are in session. He tells the crowd that the court is dismantling the People’s Constitution and that they need to “fight like hell” to preserve their rights and freedom. Then he goes back to the White House and watches on TV while the mob violently assaults the Supreme Court.  

Would the court consider this an official act of the president?

There is an important difference between kings or dictators and leaders of a democracy. The difference is accountability to the people. 

Kings and dictators have no accountability. They can do whatever they want, unencumbered by inconvenient laws. Our Declaration of Independence is a detailed legal argument that rejects the leadership of a king for the lack of any accountability to American colonists.

Somehow, a majority of our Supreme Court forgot the Declaration of Independence. 

I have written in the past about the difference between the processes of reason and rationalization, the former ending in a conclusion that logic leads to and the latter starting with a conclusion then making up an argument to support it.  

I wish I could believe this court innocently couldn’t see the forest for the trees. The ugly reality is that our supposed best legal minds decided to make a king – 248 years after Thomas Jefferson argued against it.