'A massive transfer of power to the presidency'

A conversation on today's Supreme Court ruling.

Today’s Supreme Court decision on presidential immunity is a landmark case in terms of what a chief executive can and cannot do in office. (You can read the full opinion here.)

But, I am no lawyer. (Sorry Mom!) So rather than attempt to analyze What It All Means myself, I decided to reach out to a Court expert: Steve Vladeck.

If you don’t know Steve, you should. He is the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law. Steve’s Supreme Court Substack — “One First” — is a tremendous resource to understand the Court and its rulings.

Our chat about the immunity ruling — conducted via email and lightly edited for flow — is below. If you want even more from Steve on the ruling, he’s holding a live chat from 8:30 pm to 9:30 pm TONIGHT on his Substack.

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Chris: In the most basic terms — talk to me like I am a legal idiot 😉 — what does the immunity decision mean in a practical sense for the presidency?

Vladeck: It is nothing less than a massive transfer of power to the presidency — establishing as a matter of constitutional law that presidents cannot be prosecuted for anything they do within their “core” executive powers (whatever that is), and that presidents will often be immune for anything they do that is an “official act.”

That's not just immunizing presidents for what they do as President; it's also incentivizing bad-faith holders of the office to dress up criminal conduct in the guise of official acts so that they can get away with it.

It would be one thing if we had a functioning impeachment process, so that we could have some faith that presidents will still be deterred from such behavior. But we don't. Thus, we're going to be left, going forward, that much more to the hope that presidents will simply choose to behave lawfully. That's an awfully thin reed on which to rest a whole lot of power. 

Chris: In terms of Jack Smith’s two cases against Trump — on classified documents and the 2020 election — does this effectively end them? Delay them? Or have little impact on them?

Vladeck: There's no question that today’s ruling throws a wrench into the January 6 prosecution. That case almost certainly can still go forward; the problem is that the Supreme Court has left a lot of work for the lower courts to do on remand, and whatever the lower courts hold will itself presumably be subject to appeal back to the Supreme Court.

It's now all-but impossible to imagine the January 6 case going forward before the November election. And the fate of that case after the election is, quite obviously, tied to the result of the election.

The classified documents case is harder to predict. It shouldn't be the case that today's ruling causes that much there; the underlying criminal charges in that case all relate to conduct by former President Trump after he left office.

But Judge Cannon has already demonstrated that she's willing to indulge implausible legal theories and arguments that aren't likely to survive appellate review — when they augur in Trump's favor.

So it's not hard to imagine a world in which Cannon relies on today's ruling (and Justice Thomas's concurrence) to really hamstring, if not end, the classified documents case. She'll likely get reversed if she does so, but it will take time — which, again, would push the case to the far side of the election, and likewise peg its fate to that of what happens at the ballot boxes in November.

Chris: Liberals are up in arms at the decision — insisting that this opens the door for Trump to pursue his dictatorial ambitions if elected again. Is that a legitimate fear based on the ruling or not?

Vladeck: I think the ruling is profoundly dangerous and profoundly naïve, but also that there's one more really important obstacle standing between Trump's potential re-election and a serious slide toward authoritarianism — and that step is, ironically, the Supreme Court.

Nothing in today's ruling prevents the Court from pushing back against whatever a future President Trump does, or even from holding that conduct he engages in during his second term falls on the prosecutable side of the line.

The problem is that the Court's ability to hold Trump accountable depends, at least to a large degree, on the enforceability of its decisions — including its rulings against Trump.

The more that the Court does to undermine its public credibility, the harder it will be to enforce its unpopular mandates. So to me, the real cost of today's decision is not the unlawful conduct it might incentivize future presidents to engage in; it's the harm to the Court's own ability to stand up to future presidents that public dissatisfaction with today's ruling will cause.

Chris: How consistent — or not — is this ruling with the Court’s general views on the powers of the presidency?  If inconsistent, how so?

Vladeck: I don't think the Court, before today, could be said to have one consistent view on the powers of the presidency.

History is dotted with cases both endorsing broad presidential powers and reining them in. But one of the things that's reflected in today's ruling is just how much the current conservative majority is also a pro-presidential power majority — the likes of which we've never seen before on the Court.

I can't imagine any prior Court willingly giving this much power to any president. And whereas prior rulings endorsing broad presidential power can be pointed to as some support for what the Court did today, none of those rulings brought with them such grave concerns about how presidents who abuse their powers will be held accountable. Today's ruling clearly does.

Chris: Finish this sentence: “In four years time, we will look back at this decision and think ___________.” Now, explain.

Vladeck: I honestly think four years is too short a time-horizon, regardless of who wins the election this November.

The real way to mitigate the potentially disastrous effects of today's ruling is to have a reinvigorated impeachment process — where presidents who abuse their office can meaningfully be held accountable by the people's elected representatives.

I'm not optimistic that we'll see such a reinvigoration in the next few years, but if today's ruling puts that much more pressure on voters to prioritize governmental accountability at the ballot box, maybe that's a silver lining. I realize that this is a stretch, but most of the alternatives are depressingly bleak.