Enough room to test Trump’s immunity

The liberals, in the United States Supreme Court, and in the country at large are aghast that the Supreme Court has said that a former president of the country enjoys immunity for acts done in his official capacity. Chief Justice John Roberts delivering the majority judgment of the six conservative judges wrote: “We conclude that under our constitutional structure of separated powers, the nature of presidential power requires the former president have some immunity from criminal prosecution for official acts during his tenure in office.” And Roberts added for clarity: “As for a president’s unofficial acts, there is no immunity.” This is a clearly stated position. For example, criminal charges of starting the war in Iraq in 2003 cannot be brought against George W Bush because it is a decision he took as the president of the United States. Now, did Donald Trump act in his official capacity as president when he tried to pressurize Vice President Mike Pence not to certify the presidential election which he had lost in November 2020? Did Donald Trump act in his official capacity as president when he gave an inciting speech to his supporters to go and attack the Capitol on January 6, 2021? The Supreme Court sent the case back to District Judge Tanya Chutkan of the District of Columbia, saying that these issues need to be scrutinised.

So, in strict terms, the court did not let off Donald Trump. Donald Trump believes that the Supreme Court verdict means that he is immune from all charges of misconduct when he was president till January 20, 2021, when Joe Biden his successor took oath of office. President Joe Biden said that the Supreme Court has done a disservice to the country.

The Supreme Court’s majority opinion goes beyond Donald Trump and his questionable deeds. And it is a  very conservative one indeed. But the problem is that for more than two centuries since the Constitution came into existence, no American faced criminal charges like Donald Trump has done. What the court has said in its Monday verdict applies to all future presidents. But what remains to be determined is whether a particular act was done in the official capacity as president.

The liberal judges rightly disagreed on the principle of law that the majority of six judges invoked. Justice Soto Mayor was rightly indignant that the verdict in effect meant that the president is above law as far as official acts are concerned and he is like the king. In English law, there could be treason against the monarch, but the monarch was above the law of treason. But King Charles I was beheaded in 1649 by the parliamentary forces after the Civil War despite King Charles’ defiance that he was above law.

So the theoretical clash between the three liberal judges and the six conservatives is a deep one. And it cannot be easily resolved. It can be done only if there is an amendment to the US Constitution that the President is not above law for acts done in his official capacity. President Biden stated the principle on which America was founded: “This nation was founded on the principle that there are no kings in America…no one is above the law, not even the President of the United States.” This is indeed a democratic schism between the conservatives and liberals. And American conservatives themselves might find it difficult to accept the Supreme Court’s majority stance. This verdict is as controversial as the 2000 presidential election verdict of the Supreme Court, which stopped recounting of votes in Florida saying that it would cast a cloud over Bush’s legitimate victory.