Laurence Tribe on Trump immunity ruling: “The court was really flying the flag of the Constitution upside down”
“For all practical purposes, this is absolute immunity”
Published
Citation From the July 1, 2024, edition of MSNBC's Andrea Mitchell Reports
LAURENCE TRIBE (GUEST): This is a devastating blow to our system of government. In fact, probably the most eloquent and elaborate dissent, which I haven't seen quoted in the press much, is that of Justice Ketanji Brown Jackson, who said that it is a five-alarm fire for self-government under democracy. And the reason is that the court was really flying the flag of the Constitution upside down. It was suggesting that just because an act is official, that it is something a president can do but that others can't do, that creates a cloak of immunity. That's upside down. It is worse to use the cloak of presidential authority to commit ordinary crimes for which the rest of us would go to jail than it is to do things that are purely personal.
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For all practical purposes, this is absolute immunity. It's dangerous and it means we have to be even more careful never to elect a president who would think, let alone say, he wants to be a dictator on day one.
ANDREA MITCHELL (HOST): Professor Tribe, could a president take a bribe with impunity, with immunity?
TRIBE: Sure looks like it. Unless he is impeached and convicted for bribery, the fact that the bribe is for the exercise of one of his core powers, like a pardon, creates a cloud that might make the president immune. The difficulty is, as Andrew Weissman and as Marcus have carefully elaborated, not only are these acts immune, but the court held by another majority, 5 to 4, not 6 to 3, over the partial dissent of Justice Barrett, who is establishing a degree of independence.
It held by a vote of 5 to 4 you can't even use evidence of the way the president's core powers have been used. So if, for example, a bribe is offered for the president to exercise a core power like the pardon. You might be able to show that money passed hands, but you can't introduce evidence of that — of the pardon that ultimately resulted because that is one of the president's core powers. It makes no sense. And the two dissents, one by Justice Sotomayor and one by Justice Jackson, really ripped to shred the threadbare, I'm afraid to say, almost sophomoric, and foolish arguments by the chief justice of the United States, fantasizing that even though all presidents in our past have assumed that they would be subject to criminal prosecution even for misconduct that was a crime in interacting with their own Justice Department — after all, that's what Nixon did and that's why he needed a pardon.
Even though all presidents have assumed that and it hasn't crippled the presidency, maybe presidents would be too cautious, unless they were granted this new and unprecedented immunity. Again, that's upside down. The real danger, as the dissents pointed out, is the presidents will no longer be deterred by the criminal law.