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this post was submitted on 04 Jul 2024
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Here's a question.
Is it even possible to bring charges against a sitting or former president at all now, based on this ruling?
As of right now, "official acts" are absolutely immune from prosecution or investigation, and evidence gathered from such communications cannot be used against him in any way. And anything the President does is an official act until the Supreme Court deems otherwise. Which means that somebody has to bring a case against the President. Which means you need evidence. Which you can't get because it's covered by the President's absolute immunity. And you have to have standing.
Who would have standing? The DOJ? The one with the decades-long rule of not charging a sitting president? The one that takes direct orders from the man he's supposed to be investigating? Good luck even attempting to file charges while remaining employed after lunch. And what kind of evidence could they bring? If Trump called ST6 and ordered a hit on Dolly Parton, how can you prove that when the call to ST6 would be classified in the first place, the mere existence of the phone call cannot be used against him, and he can tell the prosecutor to go pound sand if he starts snooping around? "Your Honor, I believe that the President ordered a hit on Dolly Parton.........Yes, I know the President denied that a phone call was even made, yes I know his phone records are protected by absolute immunity and he doesn't have to acknowledge the existence of the phone call let alone what was said.....No, there's no other way I can prove this phone call even took place....."
No standing + No evidence = no case. Ironically, the only person who would even have standing to sue would be the POTUS himself if he finds that he somehow needs more power.
There's only two routes to getting this undone. One is a constitutional amendment, the other is for the Court to get several justices who are eager to overturn this decision, and then bring a case to trial specifically to address this issue.
I can't think of an amendment that would likely have a broader appeal than one that says presidents aren't kings and aren't above the law. But even so, I can't see it getting passed any time soon, given the overwhelming bipartisan support it would need. Personally, I'd like to see this done anyway, if only so that we could also include a provision stating that a president can't pardon himself, and can't pardon crimes that he ordered.
By comparison, it seems a lot easier to change the balance on the court, since one way or another it will be changed over time. And assuming we reach a point where we can be confident that the majority is ready to completely erase this ruling, then you just need to bring a case against a former president.
One could wait for such a case to arise organically, but that's leaving a lot to chance. You need a former president to have allegedly committed a crime, you need a evidence enough to bring a case, you need to go through the appeals process, they need to try to use presidential immunity, and then it needs to be taken up by the Supreme Court. Any number of things could go wrong, and there could be political fallout. If there's a serious enough situation that requires this, by all means, go after them and make this an issue in the case so that it has to get appealed. Worst case scenario, they get away with something they would have gotten away with anyway.
Personally, if I were president and had shifted the balance of the court back to one that respects the rule of law, I'd probably tell the justice department to bring a case against me, appeal to the Supreme Court, ask that they expedite the appeal, and then they can completely reverse this insane precedent. It would all be contrived, but that's hardly anything new. I would make sure that anyone I appointed to the Court was down with a plan like this, If they won't do that much to safeguard the country, the constitution, and rule of law, they can't be trusted with the responsibility of being on the Supreme Court.