Wait, Can Donald Trump Drone His Political Enemies Now?

[Conservative Angle]

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On Monday, all hell broke loose.

It didn’t break loose because of a Supreme Court decision. It broke loose because the Left has decided, along with the media and the Democrats, to lie about the Supreme Court decision in order to revive the flagging hopes and dead body of Joe Biden. We’ll get to why the Democrats are doing this at the end of this column.

Let’s start at the beginning.

On Monday, the Supreme Court released a decision about presidential immunity. This decision was rooted in Donald Trump filing a lawsuit to stop the various Jack Smith lawsuits against him. His claim was that as President of the United States, no matter what he did while he was President of the United States, he had full immunity from criminal prosecution.

That is not true. That is a step too far. The idea that the president of the United States is never to be criminally prosecuted for any activity is incorrect. If the president of the United States decided to murder a housekeeper in his home in the White House, for example, could he be criminally prosecuted? The answer, of course, is yes.

However, there is the idea that the president is, in fact, criminally immune from certain activities that a normal person would not be. For example, if I authorized somebody to go kill somebody abroad, I’d be criminally liable for that. If I’m president of the United States and as commander in chief, I authorize SEAL Team 6 to take out Osama bin Laden, I’m not going to be criminally liable for that.

Thus, there are numerous actions the president of the United States has to be able to perform in order to ensure the functioning of the executive authority of the United States.

The president does have outsized powers under our Constitution, but those powers are not endless. Immunity is not eternal and endless; that is not the way that immunity works. And that’s essentially what the Supreme Court found.

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In order to understand why the Left and President Biden are lying about this decision and why political games are now being played, understanding the decision itself from the Supreme Court is necessary.

Jack Smith has been pursuing a couple charges that are basically dead on arrival. There are also several charges that are not dead on arrival and that will likely be upheld when this case is reverted back to the D.C. Circuit Court of Appeals because that’s effectively what the Supreme Court did.

Vis-à-vis a couple of charges, they said the president has immunity for this sort of activity. Then they said they were not going to rule whether the president has immunity on the sort of activity about many of the other charges. Instead, they would send it back to the D.C. Circuit Court of Appeals to determine whether the president has immunity.

Judge Tanya Chutkan is the judge in that particular case. Presumably, she’s going to rule that President Trump does not have immunity on those particular charges.

In essence, this decision by the Court was an in-between decision, which one could figure out as Chief Justice John Roberts wrote the decision. Roberts is a fairly moderate justice. He is not Justice Samuel Alito; he is not Justice Clarence Thomas. He’s not one of the more Right-wing members of the federal judiciary. (It was Roberts who saved Obamacare back in the day.)

Justice Roberts has a view of the court that it should be minimalist in how it approaches decisions; it should draw decisions as narrowly as possible. In this particular case, he seemed to think, “Ok, we’re going to try to create some sort of system, some sort of framework, for thinking about when the president is immune from criminal liability and when he is not. But we are going to restrict our judgment to very specific aspects of the charges being brought against Trump. We’re going to say that in a couple of these charges he has absolute immunity, and the rest of this we will push back to the courts.”

That does not sound as if former President Trump or any other president has endless immunity.

What does the decision say? The Supreme Court starts its decision by defining the crimes for which Trump is being charged, and they essentially break them down into five categories.

1. He tried to get state electors to change their votes.
2. He organized fraudulent state electors.
3. He tried to use the DOJ to conduct what Justice Ketanji Brown Jackson has called sham investigations, meaning investigations into electoral fraud that were really poorly based and resulted in nothing.
4. He tried to persuade Mike Pence to alter the results.
5. He tried to convince members of Congress to delay certification.

All those things, in my opinion, would be morally wrong — but that does not mean that they are legally criminal. That’s particularly true if you’re president of the United States because, as the Court pointed out, the president is the head of the DOJ. There are only three branches of government; the DOJ is not an independent branch of government. The Department of Justice works for the President of the United States.

If the president orders the DOJ to go forth with an investigation, it becomes the job of the DOJ to go ahead and investigate because the decision falls within the president’s purview of authority.

The Supreme Court wrote:

The parties before us do not dispute that a former President can be subject to criminal prosecution for unofficial acts committed while in office. They also agree that some of the conduct described in the indictment includes actions taken by Trump in his unofficial capacity. They disagree, however, about whether a former President can be prosecuted for his official actions.

Trump contends that just as a President is absolutely immune from civil damages liability for acts within the outer perimeter of his official responsibilities, he must be absolutely immune from criminal prosecution for such acts. And Trump argues that the bulk of the indictment’s allegations involve conduct in his official capacity as President. Although the Government agrees that some official actions are included in the indictment’s allegations, it maintains that a former President does not enjoy immunity from criminal prosecution for any actions, regardless of how they are characterized.

We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity. At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient.

So why does a president need immunity at all? The answer is that the executive has to be able to function in the constitutional order. So as the Supreme Court wrote:

A President inclined to take one course of action based on the public interest may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office. And if a former President’s official acts are routinely subjected to scrutiny in criminal prosecutions, “the independence of the Executive Branch” may be significantly undermined. The Framers’ design of the Presidency did not envision such counterproductive burdens on the “vigor” and “energy” of the Executive.

They also wrote:

We must, however, “recognize the countervailing interests at stake.” Federal criminal laws seek to redress “a wrong to the public” as a whole, not just “a wrong to the individual.” There is therefore a compelling “public interest in fair and effective law enforcement.” The President, charged with enforcing federal criminal laws, is not above them.

In other words, the president is not above the law, but there are core constitutional functions where the president is immune. For example, criminal prosecution could not be brought against Barack Obama for droning Anwar al-Awlaki despite the fact that Awlaki was an American citizen overseas who was a terrorist.

For all the Democrats who are freaking out today (among them Justice Sonia Sotomayor, who hysterically wrote in her dissent, “The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”), I might point out that if Donald Trump had that authority, the current president is Joe Biden. So he could do that to Trump today.

But Biden isn’t doing that because he doesn’t believe this malarkey. No one believes the claims the Left are making about this particular case.

So why are the Democrats doing this?

Because Joe Biden is a failed candidate. That’s all.

Trump is still going to be prosecuted on a number of these charges, but that doesn’t matter. They have to proclaim that the end of the Republic is nigh. If Biden were leading in the polls, up by a significant number, nobody would care because this is a very rote, noncontroversial decision.

The Democrats have to pretend that there was an inflection point on Monday. They have to, because if there was no inflection point, Biden will lose the election. They have to pretend because Biden physically died during a debate.

And if Joe Biden died physically during a debate, they can’t claim that Donald Trump is such a threat to the Republic that Biden has to be elected.

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