Acquired Immunity
In recent history, when confronting questions of Constitutional interpretation, liberal and conservative Supreme Court justices have generally taken different approaches, which might be loosely defined as spirit of the law versus letter of the law. Liberals, the spirit faction, take as their starting point the principles under which the Constitution was created and assume the laws that later sprung from that document were drafted to conform to those principles. To them, the Constitution, although firm in basic precepts, is a “living” document.
Conservatives, the letter folks, begin with language of the text, which they interpret solely on the basis of what to them is its objective meaning, after which, relying on logic, reach conclusions they insist accurately reflect the law as it was written. As former Justice Antonin Scalia, a devotee of this process, once enthused on NPR, “Let’s go back to the good old dead Constitution.”
Each methodology is prone to criticism. Conservatives accuse liberals of contorting the law to suit popular sentiment and their own view of what the law should be, not what the law is. Liberals, ironically, have much the same sentiments. They accuse conservatives of contorting the law to conform to their political ideology and their own view of what the law should be, not what the law is meant to be.
Although the criticism from each of the camps has merit, the conservative position is fatally flawed. Unlike the liberals, who recognize that a degree of subjectivity will always be part of an interpretive process, conservatives, be they textualists or originalists, claim to have taken the subjectivity out of it, which, logic or no logic, is an impossibility. Regardless of what conservative justices like Clarence Thomas and Samuel Alito contend, language is, at its core, a subjective, not objective, medium. (As Bill Clinton once pointed out, albeit with more than a soupçon of disingenuousness, it even can “depend on what the meaning of the word ‘is’ is.”)
To turn conservatives’ use of logic on its head, it is useful to examine one of the accepted fallacies in formal logic, almost the very definition of subjectivity, the reductio ad absurdum, an argument that seems to follow all the rules but leads to a conclusion that is…absurd.
Which brings us to Jack Smith, Donald Trump, and the notion of blanket presidential immunity.
When Smith petitioned the Supreme Court to fast-track a decision on whether a president enjoys immunity from prosecution for any crime committed while he or she is in office, most legal analysts saw no reason why the Court would refuse. They were going to get the case anyway and the basic contention of Trump’s legal team, that the case should be dismissed on that basis, seemed more desperation than law. Why bother waiting for an appeals court ruling when delay, if long enough, might result in Trump dismissing the case and (again) mocking the legal process?
But the Court, without any recorded dissent, refused. Legal analysts scrambled to find ways to defend the decision, most concluding that the Supreme Court wanted the appeals court decision on record to aid them in rendering judgment on such a fraught and pivotal issue.
But the issue, fraught and pivotal that it may be, should be no more in question than whether one should pull one’s hand away from an open flame.
Trump’s position, ironically, is wholly appropriated from those un-American, subjective liberals. His lawyers argue that “separation of powers,” a phrase that appears nowhere in the Constitution, is accepted as fundamental in Constitutional law, which means that one branch, in this case the judiciary, cannot intrude on the functioning of another branch, in this case the executive, even if, in theory, the president shoots someone dead in the middle of Fifth Avenue.
This is where reductio ad absurdum comes in. If that argument is to be taken seriously, it is necessary to conclude that by “separation,” the delegates to the Constitutional Convention meant “invulnerability.”
They did not.
While the delegates certainly wished to advance a system of separation of powers, they were unanimous (except perhaps for Alexander Hamilton) in doing so only if each of the branches could act to control either one or both of the other two, what today is referred to as “checks and balances.” In fact, during the June 18, 1787 debates, when Hamilton spoke for six hours and advocated an executive very much like a king, without those checks, the delegates were horrified.
William Samuel Johnson, Hamilton’s friend and admirer, later observed, “A gentleman from New York, with boldness and decision, proposed a system totally different from both [other plans]; and though he has been praised by everybody, he has been supported by none.”
The truth, as every justice should be well aware from any basic law school course, is that of the three branches, the one from which the delegates most feared excess was the executive. (Would that they had felt similarly about the judiciary.) It is simply not possible that they would have left the one person whose power they viewed as the greatest threat to the survival of the republic free to commit criminal acts while in office, restrained only by impeachment, which was made exceptionally difficult to achieve—and would only result in the loss of a job.
It is still widely expected that when the Supreme Court does ultimately rule, Trump’s arguments will be dismissed but, with this Court, nothing is certain. Most interesting will be the votes of Thomas, Alito, and Neil Gorsuch, none of whom make the slightest effort to hide their contempt when liberals use subjectivity as the basis for an opinion.