The Supreme Court Decision

 Overall, I was pleased with the Supreme Court Decision giving former President Trump immunity for official acts done while president largely because I believe the prosecutions against him are wrong and politically motivated, as well as the opinion that he is not being provided due process in any of these cases including the one in which he was recently convicted in New York. I should state at this juncture that I am not a lawyer or constitutional expert, though I have three decades of federal law enforcement experience with all the court time that goes with it. I won’t go into the details as to whether this decision will wipe out all the pending trials against Trump and force a retrial in the case where he was convicted. I personally hope so, but I cannot predict. 

As for the decision, I do feel that it leaves some loose ends that will have to be dealt with in the future.  This decision obviously goes beyond Trump and will apply to future presidents. Most importantly, what are official acts and unofficial acts? One example of that was the checks that Trump signed for Stormy Daniels while acting as president. Official acts? On the surface, I don’t think so, but some smart lawyer could probably define it in a different way.

I don’t believe any president should be above the law, but there is a reason why the Justice Department has a policy that it will not prosecute a sitting president. Till now, the Constitution has not been clear on this though a former president can be prosecuted. Imagine if a rogue prosecutor anywhere in the US, federal or local, decided that the sitting president did something illegal and decided to bring charges? We cannot cripple a sitting president and bring chaos to our executive branch. It would be a national security disaster. (And as we have learned, we do have rogue prosecutors.)

Does the decision give Trump and other presidents total immunity? Of course not. If a president were to murder or rape someone in the Oval Office, that is clearly not an official act. Other actions can be argued, however, and I suppose every president has taken some official action that his critics have said were illegal, unconstitutional, or abusing his authority, etc. This week, MSNBC’s Rachel Maddow, with whom I never agree, had an interesting comment saying (I paraphrase) that if no actions taken by a president can be prosecuted, Richard Nixon would like to have his presidency back. I assume she was referring to the infamous audio tape of Nixon instructing his surrogates in the Oval Office to have the CIA call off the FBI (from the Watergate Investigation) on the grounds that the whole thing was a national security issue.

Of course, Nixon was never prosecuted. He resigned in the face of almost certainly being impeached and removed from office. President Ford then gave him a pardon for any and all crimes he may have committed in Watergate. Nixon had no recourse for resigning in the face of impeachment and removal from office for his actions in Watergate. Maddow still has a point. When Richard Nixon ordered his surrogates to use the CIA to get the FBI off the Watergate case, was that an official act? I wonder what today’s Supreme Court would say about that. I would say that was an official act even if it was illegal because it was part of a coverup of the Watergate investigation. The example that some on the left have used is what if the president ordered his attorney general to assassinate a political rival? Certainly illegal. Official act? I would say yes. Any order a president gives to his attorney general is an official act in my view, legal or illegal. If that is the case, then I see a need for some fine-tuning of the Supreme Court’s decision.

On the other hand, going back to Maddow, suppose for the sake of argument that a future Trump Justice Department were to investigate and bring convincing evidence that President Obama ordered his Justice Department and FBI to whitewash the Hillary Clinton case and concoct a false narrative about Trump being tied to the Russians, and for the FBI to use a false justification to get a FISA warrant on Carter Page, etc. (Again, I am speaking hypothetically. I am not saying Obama ever gave such orders.) Would those have been considered official acts? I would say yes. What would you say, Ms. Maddow?

There is another interesting aspect to all this, which came out in the recent debate. Trump was asked if elected, would he attempt retribution against his enemies (in the form of prosecution, etc.). Trump, in his usual fashion, did not immediately give an answer until after being pressed and said that the best revenge was a successful administration. Good answer. Previously, Trump has made statements that implied that if elected, it would be payback time, “military tribunals” etc. All that did was give fodder to the media and the Biden campaign (which is still breathing as I write).

While I do believe crimes have been committed by many people in attempts to destroy Trump, including these malicious prosecutions (not to mention Biden’s own corruption issues), I see a disturbing trend here where incoming administrations might try to prosecute the previous administration.

If we go back in history, would it have been justifiable if President Reagan had sent his Justice Department to bring charges against former President Carter for giving the Panama Canal to Panama? Could President Clinton have gone after former President Reagan for the Iran-Contra deal? Could President George W. Bush have gone after former President Bill Clinton for say, assaulting Kathleen Willey in the Oval Office (as she alleged)? Should Bush have ordered his Justice Department to investigate and possibly bring charges for the shady dealings of the Clinton Global Initiative (established after Clinton left the presidency)? Could President Obama have ordered his Justice Department to bring charges against George W Bush for the Iraq invasion? Should President Trump have used his Justice Department to restart the investigation of AG Eric Holder (and Obama) in Operation Fast and Furious? With the exception of the two Clinton examples, all of the above hypothetical examples involved official acts by presidents while in office. (Rachel Maddow can rest easy. If Clinton, indeed, sexually assaulted Willey in the White House, it could never be considered an official act. I’m not claiming he did or didn’t. It was alleged.)

Hopefully, you see where I’m going with this. Were I a better historian and wanted to write a longer article, we could go all the way back to George Washington and find something they did in office that was deemed illegal by a succeeding president (of an opposing party, naturally). If we start doing this, virtually every president would find themselves in the dock after they left the presidency. That is what banana republics do.

Note that I didn’t even go into the Supreme Court’s ruling in the same decision that official acts by a president while in office cannot be used by prosecutors to prove other alleged crimes. I have no problem with it, but it would require a better legal expert to thoroughly examine it.

At some point, all this has to end. What also has to end is weaponizing our law enforcement agencies to bring down political rivals. But how? The problem is that corruption in politics has increased in recent decades and corrupt politicians have to be held accountable. Am I suggesting that we should turn a blind eye to this corruption and just let presidents do what they want? Not at all. Thus, we have a conundrum: How do we stop this trend of using prosecutors and law enforcement to go after presidents and former presidents while still holding future presidents accountable? The Supreme Court decision gives us a start, but I think more is needed. How do we accomplish all that and create a perfect system? At this point, I find myself a bit too deep in the weeds.