SCOTUS Justices' Own Words Prove Extreme Deceit (and Irrelevance) of Trump Immunity Decision (Part II)

SCOTUS justices are intentionally undermining our power to choose our representatives and to punish purported representatives who try to violently rob us of our power

In Trump v. United States, six SCOTUS justices said essentially merely that Trump might “have some immunity” for “official acts” (if any) and “with respect to the President’s exercise” (if any) “of his core constitutional powers” such “immunity must be absolute.”  Their own words established that Trump cannot have any immunity for anything at issue in Trump.

The Trump justices emphasized the grounds for Trump’s prosecution. All his actions were directed at overriding (or trying to cause other people to violate) express provisions of our Constitution, to obstruct (or incite others to obstruct) the counting of ballots on January 6, to change the outcome of a presidential election, and to prevent his elected successor from replacing him on inauguration day on January 20, 2021. It is impossible that any such conduct could be a “core” power of the president or even “official” power that the people delegated to anyone in our Constitution.¹

SCOTUS justices delayed Trump’s prosecutions for months to issue an unconstitutional “advisory” opinion about what Trump conduct they would consider official or unofficial if such conduct were properly before SCOTUS. Just last year in Haaland v. Brackeen, 599 U.S. 255 (2023), Justice Barrett delivered an opinion for SCOTUS emphasizing that it has no power to issue any opinion about anything that was “not before the court” because such an opinion would be “contrary to Article III’s strict prohibition” on “issuing advisory opinions.”²

The Trump justices discussed a litany of irrelevant presidential powers that obviously were delegated to the president by the Constitution. But none of those powers were even at issue in Trump. Moreover, they clarified that “a President’s acts” within “his official responsibility” only “to carry out his constitutional duties.” Clearly, nothing Trump allegedly did in Trump was “to carry out” any “constitutional duties.” Everything Trump allegedly did in Trump was to help him violate a duty that was one of the most clear and most essential constitutional duties of a president: relinquishing power peacefully.

The Twentieth Amendment expressly emphasized that one of Trump’s core duties under our Constitution was to relinquish all presidential powers “at noon on the 20th day of January.” The Twelfth Amendment expressly emphasized that the Vice President on January 6 “shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted” and “[t]he person having the greatest number of votes for President, shall be the President.” Article II emphasized that our Constitution required the president always to “faithfully execute the Office of President” and “to the best of” his “Ability, preserve, protect and defend” our “Constitution” and (particularly relevant here) “take Care that the Laws be faithfully executed.” Trump tried to violate (and he incited and tried to incite people (including other federal officials) to help him to violate) all the foregoing.

Having considered the text of the Constitution, we should do as the Trump justices urged us to do: “look” to “the Framers’ design of the Presidency within the separation of powers” and “our precedent.” 

One of the authorities who most influenced the Framers design in Article II and the Twelfth and Twentieth Amendments, above, and in Amendments XIV, XV, XIX, XXIV and XXVI (securing our right and power to vote) was Montesquieu. Montesquieu’s most influential thoughts included those about the sovereignty of the people and, specifically, about the suffrage of sovereign citizens.

“When the body of the people is possessed of the supreme power, it is called a democracy.” “In a democracy the people are in some respects the sovereign [making the laws], and in others the subject [of the laws].” Citizens “exercise” their “sovereignty” by “their suffrages.” By voting, citizens express “their own will,” including by choosing our representatives to make our laws. By voting “the sovereign’s will” becomes “the sovereign himself. The laws therefore which establish the right of suffrage are fundamental to [republican] government. And indeed it” is equally fundamentally “important to regulate in a republic, in what manner, by whom, to whom, and concerning what, suffrages [the right to vote] are to be given.” Suffrage is the speech of sovereigns in a republic.

The Constitution prescribes how the president is to be elected, including whose votes elect him (electors chosen by each state), how such votes must be counted, and when the elected president must be inaugurated. None of the foregoing powers were vested in the president. Those particular powers emphatically and expressly were not delegated to the president. Some such powers expressly were reserved to the states. Trump usurped powers not delegated to him, and he did so for the especially egregiously unconstitutional purpose of usurping powers that the Constitution reserved to the states, their electors, the sovereign citizens of particular states, and even the sovereign people as a whole regarding the election of the president. SCOTUS precedent included very strong language about such misconduct.

In United States Term Limits v. Thornton, 514 U.S. 779 (1995) SCOTUS emphasized “the critical postulate” of our Constitution is “that sovereignty is vested in the people” and that such “sovereignty confers on the people the right to choose freely their representatives to the National Government.” A “critical idea” in our Constitution is that “the right of the people to vote for whom they wish” is “an [essential] aspect of [their] sovereignty.” Any “restrictions upon the people to choose their own representatives must be limited to those” that are “absolutely necessary for the safety of the society.”

The Term Limits majority quoted other important authorities. As “Hamilton emphasized,” “The true principle of a republic is, that the people should choose whom they please to govern them.” “As Chief Justice John Marshall” emphasized in McCulloch v. Maryland in 1819, “The government of the Union” is “emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them” and such powers “are to be exercised” exclusively “for their benefit.” As President Lincoln emphasized in his Gettysburg Address in 1863, “Ours is” a “government of the people, by the people, for the people.”

In Term Limits, Justices Thomas, O’Connor and Scalia and Chief Justice Rehnquist issued a dissenting opinion. They emphasized a particular aspect of popular sovereignty. Trump’s efforts were especially egregiously and outrageously unconstitutional because he and his co-conspirators (including some at the U.S. Department of Justice) specifically sought to undermine the sovereignty of the people of particular states (by replacing their actual electors and their votes with fraudulent electors and votes):

Our system of government rests on one overriding principle: All power stems from the consent of the people. To phrase the principle in this way, however, is to be imprecise about something [vitally] important to the notion of “reserved” powers. The ultimate source of the Constitution’s authority is the consent of the people of each individual State, not the consent of the undifferentiated people of the Nation as a whole.

The ratification procedure erected by Article VII makes this point clear.

When they adopted the Federal Constitution, of course, the people of each State surrendered some of their authority to the United States (and hence to entities accountable to the people of other States as well as to themselves). They affirmatively deprived their States of certain powers, see, e.g., Art. I, § 10, and they affirmatively conferred certain powers upon the Federal Government, see, e.g., Art. I, § 8. Because the people of the several States are the only true source of power, however, the Federal Government enjoys no authority beyond what the Constitution confers: The Federal Government’s powers are limited and enumerated.

In Citizens United v. FEC, 558 U.S. 310 (2010), Justices Kennedy, Scalia, Alito and Thomas and Chief Justice Roberts addressed speech in connection with our choice of our representatives. Such speech necessarily encompassed voting for representatives (suffrage is the speech of sovereigns in a republic). “Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.”

In Citizens United, SCOTUS reemphasized that in our “republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office” (i.e., actually vote for or against our own representatives) “is essential.” They repeated such language from Buckley v. Valeo, 424 U.S. 1 (1976), which also emphasized a reason relevant to Trump: “the identities of those who are elected will inevitably shape the course that we follow as a nation.”

In Fin. Oversight & Mgmt. Bd. for P.R. v. Aurelius Inv., LLC, 590 U.S. 448 (2020), Justice Sotomayor authored a concurring opinion. She emphasized that “this Court has recognized” repeatedly that “the distinguishing feature” of our “republican form of government” is “the right of the people to choose their own officers for governmental administration, and pass their own laws in virtue of the legislative power reposed in representative bodies, whose legitimate acts may be said to be those of the people themselves.”

Justice Sotomayor was quoting In re Duncan, 139 U. S. 449 (1891). Duncan also emphasized a point relevant to Trump, as well as to some of the Trump justices’ other recent decisions: “while the people are thus the source of political power, their governments, National and State, have been limited by written constitutions,” in which the people “have themselves thereby set bounds to their own power, as against the sudden impulses of mere [temporary popular] majorities.”

In Yick Wo v. Hopkins, 118 U.S. 356 (1886), SCOTUS emphasized that “while sovereign powers are delegated” by the sovereign people “to the agencies of government” (the people’s agents), “sovereignty itself remains with the people, by whom and for whom all government exists and acts.” Under our Constitution, the people always retain their sovereign power as “the ultimate tribunal of the public judgment, exercised either” by exerting “the pressure of [public] opinion” (speech) “or by means of the suffrage.” The “political franchise of voting” is “a fundamental political right, because” (like speech, generally), voting is “preservative of all rights.”³ Even so, “the law is the definition and limitation of [all] power” (including of any popular majority and of all their representatives in state or federal government).

It is not even possible that any action by Trump at issue in Trump was the exercise of any official or core power that We the People delegated to the president by our Constitution. It is not even rational that any part of the executive branch would be allowed to conceal (or that SCOTUS had the power to authorize them to conceal) evidence of how Trump and other purported public servants (federal officials in the executive branch or perhaps even the judicial branch) egregiously abused their positions to seek to defeat the power that states and the people expressly reserved to themselves regarding the election of our president.

The conduct of SCOTUS in this case brings to mind crucial warnings in The Federalist No. 78. Alexander Hamilton (quoting Montesquieu) emphasized, “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” Although “liberty can have nothing to fear from the judiciary alone,” it “would have every thing to fear from its union with either of the other departments.” SCOTUS’s Trump decision is evidence of such a dangerous union—and it is not alone.

1. The Trump justices emphasized that Trump and his co-conspirators allegedly “used knowingly false claims” to “change electoral votes,” “organized fraudulent slates of electors,” “caused these fraudulent electors to transmit their false certificates to the Vice President and other government officials to be counted at the certification proceeding on January 6,” “attempted to persuade” the “Vice President” to “fraudulently alter the election results,” “repeated knowingly false claims” to “supporters, falsely told them that the Vice President had the authority to and might alter the election results, and directed them to the Capitol to obstruct the certification proceeding,” “exploited the disruption” at the Capitol on January 6 by “levy[ing] false claims” and trying to “convince Members of Congress to further delay the certification.” They also allegedly “attempted to use the Justice Department” to affect “the election outcome” by pretending to “conduct sham election crime investigations” and “send[ing] a letter to the targeted states that falsely claimed that the Justice Department had identified significant concerns that may have impacted the election outcome.”

In Brandenburg v. Ohio, 395 U.S. 444 (1969), SCOTUS has emphasized the limits exceeded by all Trump’s speech alleged above. The “constitutional guarantees of free speech and free press do not” protect any speech that has been proved to constitute “advocacy of the use of force” or “advocacy” of any other “law violation” when “such advocacy is directed to inciting or producing imminent lawless action” and it “is likely to incite or produce such action.” All of Trump’s speech (even to DOJ employees) was unconstitutional.

In United States v. Alvarez, 567 U.S. 709 (2012), SCOTUS (including Chief Justice Roberts) emphasized that “false claims” asserted “to effect a fraud or secure moneys or other valuable considerations” could be punished “without affronting the First Amendment.” Justices Alito, Scalia and Thomas issued a dissenting opinion to quote precedent further emphasizing that “the knowingly false statement and the false statement made with reckless disregard” for its falsity “do not enjoy constitutional protection” and “the constitutional guarantees [of the First Amendment]” permit punishing “calculated falsehood” that causes harm.

2. The Trump justices emphasized the obvious: “Determining whether” Trump actually “is entitled to [any] immunity from [any] particular prosecution requires applying” governing “principles” to actual “conduct.” “The first step is to distinguish his official from unofficial actions,” but “no court has thus far considered how to draw” even “that distinction.” The “lower courts” simply “categorically rejected any form of Presidential immunity,” so “they did not analyze” any “conduct” to determine if “it should be categorized as official” or “unofficial. Neither party [even] has briefed that issue.” “Given all these circumstances, it is particularly incumbent upon us” to refrain from making any such determination because SCOTUS “is a court of final review and not first view.” So they emphasized, “We [merely] offer guidance on those issues below.”

The decision of six SCOTUS justices to sua sponte offer such “guidance” (which the parties did not even request, on an issue the parties did not even brief and on which lower courts did not even rule) was both suspicious and striking in light of SCOTUS’s many statements that the Constitution bars all federal courts from issuing “advisory” opinions. Moreover, their guidance was specious. They pretended that Trump’s form (communications with other government officials) trumped the function of Trump’s conduct (undermining our sovereignty by changing the results of the election and preventing Trump’s elected successor from replacing Trump). SCOTUS justices are illegally (and unconstitutionally) helping someone conceal evidence. Their public conduct and their conduct reported by the New York Times indicates they scrambled to provided cover for somebody they want to help with a cover-up.

3. In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), a unanimous SCOTUS quoted James Madison to emphasize how our freedom of speech guards our liberty and sovereignty:

In the famous Virginia Resolutions of 1798 [Madison emphasized] “the right of freely examining public characters and measures, and of free communication among the people thereon, [because our First Amendment freedoms have always] been justly deemed the only effectual guardian of every [American] right.”

[In Madison’s famous Report of 1800, he emphasized,] “The people, not the government, possess the absolute sovereignty.” The structure of the government dispersed power in reflection of the people’s distrust of concentrated power, and of power itself at all levels.