Another possible scenario: Trump gets reelected in November, and has vowed retribution against his political opponents. He convinces the Justice Department to indict Joe Biden. But……..”not so fast”, says the Supreme Court.

On one level, there seems to be so much wrong with the Supreme Court case about presidential immunity. On the other hand, unless we have a crooked president (I understand, we might have one again soon), which hopefully will be rare, what’s the big deal?

But having said that, and having run through some, but not all, of the opinion of Chief Justice Roberts, I find it – as usual – filled with intellectual hypocrisy. One major thrust of the argument is that you can’t have a president worried that any action he (or she – duh!) might take would land him in the slammer. Well, gee, Mr. Roberts, we have had 46 presidents, and I don’t know that any of them let that control any of their actions, so why focus on that as a major reason for the decision?

Another reason given is that there are separation of powers in our government, set by our constitution, and having the president subject to the whims of the judiciary would violate that separation. Okay, maybe I read that part wrongly, or somewhat wrongly. Clearly, while the president has been given a lot of power in the constitution, being above the law is not one of them. And the president’s job is to carry out laws that come from the legislature, and the job of the judiciary is to make sure that the president does so and does so with objectivity.

The decision itself is not too different from what I predicted yesterday morning. But it’s worse. I figured that the Court would conclude that there were presidential actions (official actions) and there were actions that were not official. I did not foresee a difference between “core” official acts, and those official acts that are on the outskirts of the perimeter of presidential authority, and there are acts on the outside of those outskirts which, presumably, are not official acts.

Now, you have heard by now that the Court did not define those categories, but it did give hints although I am not sure it even determined whether those hints were now law, or just hints, like dicta in a case. And presumably, they left it to the lower courts to make those distinctions. And this will, in the Trump obstruction case, require some time consuming rethinking on all sides. (And most lower court decisions themselves will wind up reviewed by higher courts.)

But it gets more complicated. Is, for example, the decision one of facts or law? If it is law, the judge will say: When President Trump did XXX, that was a core action and beyond the jurisdiction of the court. Or, he might say, that it was near the outside periphery, but didn’t cross into unofficial action. Without further guidance (or maybe even with it), this would be a political decision, would it not? Depends on who the judge is to a great extent.

But maybe whether an action falls into these categories is not a matter of law at all. Maybe a judge can tell a jury: I will give you definitions of core actions, etc, but it is up to you, as a factual matter, to decide whether President Trump’s action lies within that category, or within another. And if it is a jury’s factual determination, what is the extent of a judge’s review of that jury’s decision?

Now, we are talking about criminal liability, not civil actions here. Because the Court was so concerned about people looking over the president’s shoulder, the decision does make some definite statements. For example, any communication between a president and presumably anybody else in the executive branch (at least) cannot be used as evidence in a criminal matter. At least, that is what I understand it says. And this seems to be the case whether or not we are talking about official or unofficial actions. A president says to the attorney general (or presumably anyone in the DOJ), “Hey, let’s rob a bank. You do it, and I’ll keep the money.” Let’s say that conversation is on tape, and the bank is robbed, and the DOJ employee is caught with a bag of loot. What happens?

The DOJ employee will be arrested, tried and presumably convicted. On the basis of his actions, not on the basis of his conversation with the president which presumably cannot be introduced as evidence. As to the president’s involvement, things are different. Not only can the tape not be introduced into evidence, but a statement by the DOJ bank robber that he did this upon an agreement with, based on a conversation with, or because of an order from, the president cannot be introduced as testimony in the case. But, the Court didn’t, I don’t believe, say anything about discovery during the case, did it? Would the tape have to be turned over to the prosecution, even thought it was inadmissible as evidence?

You see the problem we are having here? Even if the president is engaged in unofficial criminal activity, a prosecutor cannot use normal techniques to gather evidence to bring to a court. Yes, it is possible that a President Trump could shoot someone on Fifth Avenue and not only not lose any votes, but also not be subject to any liability.

The Court also said that, in a criminal proceeding against a former president for actions taken in office, you cannot look at a the president’s motives. What? Every crime depends upon a motive. If you “rob a bank” without trying to rob a bank (say, by picking up the wrong brief case or having money deposited in your account by accident that you don’t even know about), you are not guilty of bank robbery (unless you decide to keep the money). But if a former president robs a bank, and you can’t look into his motive, how can you show he committed a crime?

As to overturning the election and obstructing justice and inciting a riot, etc., things get even more confusing, I think. The Court said that the speech he gave telling his supporters that he will join them in marching to the Capitol was clearly an official act (I am unclear why – in part because I would think that one act could combine official and non-official activities), but that the other things he did that day might not have been. But, again, you can’t look at his motives and you can’t use as evidence his conversations or communications with others in the executive branch of the government.

The Court did say (again, I think) that the president could be held criminally liable for actions he undertook either has a private individual or as a candidate for office. So look once more at his January 6 activities, where he tried to make sure that the vice president didn’t certify electors who would place Biden into the presidency – was that an action as the president, or was that an action as a office seeker? If you use, for example, the Hatch Act distinction which defines political action, I would think that you would conclude he was acting as a candidate. But you would think that regarding the speech he gave that day as well. So that does not help us. And remember, even if it was clearly as a candidate that he acted, a case against him still apparently can’t look to motive or use internal documents or the testimony of government officials in the case.

One thing is clear. The Supreme Court once again has determined that the Supreme Court is indeed supreme, that it is the most powerful entity in the government of the country, composed of unelected, lifetime appointees, without a code of ethics, without being able to be checked by the other branches of our government. Where, oh originalists, does it say that in the Constitution?