Dear Reader,
If you catch my appearances in the Steve Bannon War Room, you know we discuss complex issues that impact the lives of freedom-loving Americans and supporters of our Constitution.
That’s why a decision just handed down by the Supreme Court is so important. Let’s analyze this case and its impact on America for years to come.
On July 1, 2024, just a few days before the 248th anniversary of the signing of the Declaration of Independence, the Supreme Court of the United States issued one of the most important decisions in the history of the court. The case is Trump v. United States (2024) and the issue was whether a former president is immune from criminal prosecution for acts taken while he was in office.
Both the court’s reasoning and its explicit opinion make it clear that their decision applies to a president whether still in office or after leaving office. The case was unprecedented. No president had ever been prosecuted for acts committed while serving as president.
What The Court Ruled
Before diving into a detailed analysis, here’s the bottom line on what the court said:
Does this ruling ensure a dismissal of his court cases and a Trump victory in November? We will see. By the way, I have been predicting that Donald Trump will win this election and it may not even be close. Why listen to me?
Consider this. Back in 2016, the polls were overwhelmingly favoring Hillary Clinton, with many giving her over a 99% chance of winning right up until election night. But just before the election, I went on multiple TV news programs and predicted Trump would win. The rest is history. Now, you won’t believe what I’m predicting. Click here to see it because it’s a SHOCKER. And it could have huge implications for the financial markets.
A Case for the Ages
No doubt, you’ve been reading and hearing about the Trump case since the opinion was released. The first thing to know about such commentary is that 99% of the voices you hear have not actually read the opinion. Some of the on-air lawyers have but most of the anchors, reporters and talking heads have not.
That’s understandable. The opinion is over 120 pages long (including concurring and dissenting opinions) and that’s a lot to get through in a world of "breaking news.” Still, it’s important to know that a lot of what you’re hearing is political spin rather than solid analysis. We have read the opinion of the court (and I am a lawyer), so hopefully what you’ll read here is more solidly based and useful than what you’ll hear elsewhere.
The second point is that this is a case for the ages. Of course, it involves Donald Trump as a criminal defendant and Joe Biden’s Department of Justice as the prosecutor. It has huge political implications that will affect the coming presidential election on November 5th. Still, the court was writing with a 235-year perspective (beginning with George Washington) and the decision of the court will still be relevant 235 years from now (assuming the republic is still around).
Trump is one of the most momentous decisions in the history of the court on a par with Marbury v. Madison (1803) (establishing the right of courts to strike down laws on constitutional grounds) and Brown v. Board of Education (1954) (ending racial segregation in public schools). Trump v. United States (2024) needs to be considered on a level that goes far beyond today’s political battles. It delineates presidential power for all time.
The opinion makes for fascinating reading as it covers George Washington’s farewell address, Thomas Jefferson’s resistance to a subpoena in a case involving Aaron Burr, Abraham Lincoln’s use of pardon powers, Grant sending Federal troops to Louisiana and Mississippi to get certified electors in 1876, Nixon’s handling of White House tapes during Watergate in 1974, a civil lawsuit against Nixon by a terminated Federal employee (Nixon v. Fitzgerald (1982)), and a sexual harassment suit against Bill Clinton (Clinton v. Jones (1987)). For legal and history buffs, the decision is a walk down memory lane and an excellent history lesson.
The Fitzgerald case stands for the proposition that presidents are immune from civil liability for official acts. The Jones case stands for the proposition that presidents are not immune from civil liability for acts committed before they became president. The court had never before considered the issue of immunity for alleged criminal acts committed by a president while in office.
The Question of Immunity Precedes Facts
The Trump case arises from a criminal prosecution of Donald Trump by the Biden Department of Justice for acts allegedly committed in relation to the January 6, 2021, certification by the Congress of electoral votes from the 2020 presidential election.
These alleged acts included: false claims of election fraud to change electoral votes; organizing fraudulent slates of electors from certain states; using the Justice Department to send a letter to certain states that electoral fraud may have occurred; urging the Vice President to reject the election results; and urging a crowd of supporters to go to the Capitol to disrupt the official proceedings.
The first thing to know is that none of those claims has been adjudicated at trial. The issue before the Supreme Court was not whether the claims were true or false – the court is not a trial court; it deals with points of law. Instead, the court was considering whether the president is immune from prosecution on those claims.
If the president is immune, then the case will be dismissed without weighing the facts. The truth or falsehood of the claims will be left to the historians. Presidential immunity was the issue in Trump, not guilt or innocence.
Here’s how the Supreme Court answered the question of immunity:
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.
The court said that the president has absolute immunity for official acts involving "core constitutional powers” and has presumptive immunity for official acts that may not be core but are still within the "outer perimeter” of official duties. Presumptive immunity means that the president has immunity unless a prosecutor can rebut the presumption with solid legal arguments. The burden of proof is on the prosecution.
The court’s reasoning is captured in the following passage from the opinion:
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.
In plain English, the court said that a president constantly worried about whether he would be held criminally liable or not for official acts would be unable to carry out his duties.
The court refined this standard somewhat by distinguishing between core duties and those official acts still within the "outer perimeter” of official duties even if not core. Those non-core duties still receive presumptive immunity. The court wrote:
Taking into account these competing considerations, we conclude that the separation of powers principles explicated in our precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility.
Having determined the scope of immunity (absolute for core duties and presumptive for non-core duties), the court was equally emphatic that the president has no immunity for non-official acts:
As for a President’s unofficial acts, there is no immunity. Although Presidential immunity is required for official actions to ensure that the President’s decision making is not distorted by the threat of future litigation stemming from those actions, that concern does not support immunity for unofficial conduct.
Once the court says that immunity exists for official duties and no immunity exists for non-official duties, the obvious question is how to distinguish between official and non-official acts of a president. The court expanded on that question:
We offer guidance on those issues below. Certain allegations—such as those involving Trump’s discussions with the Acting Attorney General—are readily categorized in light of the nature of the President’s official relationship to the office held by that individual. Other allegations—such as those involving Trump’s interactions with the Vice President, state officials, and certain private parties, and his comments to the general public—present more difficult questions. Although we identify several considerations pertinent to classifying those allegations and determining whether they are subject to immunity, that analysis ultimately is best left to the lower courts to perform in the first instance.
In effect, the Supreme Court is deciding that allegations about communications between the president and the Acting Attorney General are definitely official and are core duties. Those charges will have to be dismissed by the District Court (the original trial court). As for the other allegations, those will have to be considered by the District Court on remand. The Supreme Court is not declaring those acts official or non-official. Instead, they’re ordering the District Court to hold a mini trial on that issue before the larger trial on the allegations can even proceed. (If the cases against Trump are dismissed, chaos could erupt. Click here to see what I’m predicting as the election nears)
Motives Are Not Considered
The Supreme Court then put the following limitations on the scope of the District Court’s inquiry:
In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such an inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II interests that immunity seeks to protect.
In effect, the Supreme Court is telling the District Court that their review is strictly limited to the issue of official v. non-official status. In making that determination, the District Court may not consider bad motives or any motives at all. They can only consider whether acts were official, not whether they were criminal or done with bad intent.
The Dangers of the Dissent
The dissenting opinion by Justice Sonia Sotomayor included a long list of hypothetical criminal acts by the president and declared that the president was now above the law based on the majority opinion and that he could act like a King. Chief Justice Roberts in his majority opinion made short work of Sotomayor’s concerns:
Like everyone else, the President is subject to prosecution in his unofficial capacity. But unlike anyone else, the President is a branch of government, and the Constitution vests in him sweeping powers and duties. Accounting for that reality—and ensuring that the President may exercise those powers forcefully, as the Framers anticipated he would—does not place him above the law; it preserves the basic structure of the Constitution from which that law derives.
Chief Justice Roberts then pointed to the danger that would arise if Sotomayor’s views were adopted. He said each administration might criminally attack the prior administration with the result that the Executive Branch would be reduced to complete paralysis:
The dissents overlook the more likely prospect of an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next.
Here’s a succinct summary of the court’s opinion in Chief Justice Robert’s words:
The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution. And the system of separated powers designed by the Framers has always demanded an energetic, independent Executive. The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts. That immunity applies equally to all occupants of the Oval Office, regardless of politics, policy, or party.
Lawfare: Be Careful What You Wish For
Steve and I have discussed the lawfare waged against President Trump many times in the War Room. Now, a new phase in this war has arrived.
The repercussions of the Trump case will be playing out between now and the election and possible for years to come. Trump’s legal team have already moved to set aside the guilty verdict in the New York "hush money” case on grounds of presidential immunity as set out in Trump v. United States.
Trump’s lawyers will argue in the Washington DC District Court that all or most of the charges in the January 6 case that led to the Supreme Court decision in Trump should be dismissed. This decision may also affect the classified documents criminal case against Trump now underway in Florida.
Ironically, it appears that the entire lawfare attack on Trump over the past two years has blown-up in the Democrats’ faces. If the Democrats had never pursued these cases, they could have argued the political points until Election Day. Instead, they have generated court decisions that not only defeat their strategies but will help Trump in the years to come. It’s a perfect example of the old admonition – be careful what you wish for.
What does this mean for the election? It means more chaos. It means an even stronger push by Democrats against the prospect of a Trump presidency. And what they have in store will shock you. Click here to find out what I’m predicting is their next move.
But don’t want too long…. It could have a huge impact on your money.
All the best,
Jim Rickards
Editor, Strategic Intelligence
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