Trump V. United States Gets It Right. Nixon Was Ahead of His Time.

On July 1, 2024, just a few days before the 248^th anniversary of the signing of the Declaration of Independence, the Supreme Court of the United States issued one of the most important decisions in the history of the court. The case is Trump v. United States (2024) , and the issue was whether a former president is immune from criminal prosecution for acts taken while he was in office.

Both the court’s reasoning and its explicit opinion make it clear that their decision applies to a president whether still in office or after leaving office. The case was unprecedented. No president had ever been prosecuted for acts committed while serving as president.

Here’s the bottom line on what the court said: A president has absolute criminal immunity for core official acts. A president has presumptive criminal immunity for non-core official acts. A president has no criminal immunity for non-official acts.

The case is remanded to the District Court (trial court) to determine whether Trump’s acts were official or not. The Supreme Court leaned heavily in the direction that at least some of the alleged acts were official. Those charges may be dismissed by the District Court. The Supreme Court has barred the District Court from any inquiry about the president’s motives.

As a practical matter, there is no way the case against Trump can be concluded before the presidential election. If Trump is elected before the case is concluded, he may just instruct his Department of Justice to drop the entire matter and move to dismiss the case.

The second point is that this is a case for the ages. Of course, it involves Donald Trump as a criminal defendant and Joe Biden’s Department of Justice as the prosecutor. It has huge political implications that will affect the coming presidential election on November 5^th.

Still, the court was writing with a 235-year perspective (beginning with George Washington) and the decision of the court will still be relevant 235 years from now (assuming the republic is still around).

Trump is one of the most momentous decisions in the history of the court on a par with Marbury v. Madison (1803) (establishing the right of courts to strike down laws on constitutional grounds) and Brown v. Board of Education (1954) (ending racial segregation in public schools).

Trump v. United States (2024) needs to be considered on a level that goes far beyond today’s political battles. It delineates presidential power for all time.

One irony relates to Richard Nixon’s famous statement in 1977, “Well, when the president does it, that means that it is not illegal.” That was considered outrageous at the time, but it’s entirely consistent with the court’s opinion in Trump.

A further irony is that it appears the entire lawfare attack on Trump over the past two years has blown-up in the Democrats’ faces. If the Democrats had never pursued these cases, they could have argued the political points until Election Day. Instead, they have generated court decisions that not only defeat their strategies but will help Trump in the years to come.

It’s a perfect example of the old admonition – be careful.

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