OPINION:
Members of Congress can reveal state secrets from the House or Senate floor without fear of arrest. Corrupt judges can convict the innocent without ever being held to account for what they have done.
But Merrick Garland and his Department of Justice insist no such protections apply to the head of the executive branch, even though it is a coequal branch of government. His argument is all the more implausible considering Mr. Garland enjoys immunity for what he does on the job as a prosecutor, but somehow, on his theory, his boss does not.
In a 6-3 decision Monday, the Supreme Court skewered the pretzel-like legal contortions Mr. Garland and his special counsel Jack Smith employed in cooking up novel legal theories on their quest to imprison former President Donald Trump before Election Day.
Writing for the majority, Chief Justice John Roberts dismissed the notion that courts could sit in judgment of a president’s motives when conducting official business. Allowing the judicial branch to imprison a commander in chief over the tough choices he makes in office would weaken the nation because it would “distort Presidential decisionmaking,” he explained.
Judges can still make “findings” about whether certain actions taken by a president shouldn’t be considered official and, therefore, would not be protected. For instance, it might not be an official act for a president or vice president to accept millions of dollars from a foreign businessman in return for threatening to withhold U.S. aid unless a certain, troublesome foreign government official is fired.
Threatening heads of state is a perfectly legal exercise of the executive power, but acceptance of laundered overseas cash in a family bank account might be considered personal — not official — business.
A lower court judge is expected to make specific findings about allegations of this sort, and a high bar is set to overcome the presumption that the conduct is protected. The White House official would be able to immediately appeal initial findings so that a lowly trial court judge with a partisan grudge is no longer able to hold the entire country hostage.
Dealing with foreign governments is a core power of the presidency, and no court can peer into the president’s mind to infer nefarious motivations. Nor can a president be charged with firing his own political appointees, which is the excuse insubordinate DOJ officials used to explore charges of obstruction of justice against Mr. Trump.
Even though Mr. Trump’s opponents used the legal system to hinder his presidency and sabotage his prospects in the upcoming election, the high court majority doesn’t care about this particular former president. Rather, the majority wants to prevent the country from entering the dark cycle of recrimination common in Third World nations.
Monday’s holding nonetheless has broad application to each of the judicial assaults against Mr. Trump. Justice Clarence Thomas wrote a separate opinion to single out Mr. Garland’s misconduct.
As the justice observes, “the Constitution also secures liberty by separating the powers to create and fill offices. And, there are serious questions whether the Attorney General has violated that structure by creating an office of the Special Counsel that has not been established by law.”
Far from allowing the president unchecked power to do anything he desires, the Supreme Court has just curbed the most dangerous presidential temptation of all — the power to prosecute a predecessor.
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