In Trump v. United States, the actual distance between the majority and dissent is not vast. Justice Barrett’s concurrence points out that there is “substantial agreement” on certain points. Justice Sotomayor, in dissent, noted that “The idea of a narrow core immunity might have some intuitive appeal, in a case that actually presented the issue.” The main disagreement lies in how the Chief Justice addressed other issues. In response, the dissent used strong rhetoric to highlight the perceived flaws in the majority opinion.
Three rhetorical themes were emphasized: abuse of power, personal gain, and corruption.
First, Justice Sotomayor mentioned the concept of “abuse of power” three times:
- Despite acknowledging that “[t]he President, charged with enforcing federal criminal laws, is not above them,” the majority ultimately grants former Presidents immunity for any abuse of official power.
- In the majority’s view, even a former President impeached and convicted for abuse of power would still be entitled to criminal immunity for those actions.
- The majority’s approach weakens the deterrent effect of the law on future Presidents who may be tempted to abuse their power.
Justice Sotomayor’s focus on “abuse of power” raises challenges in defining and applying this term, particularly when it comes to politicians. The determination of whether a power is being abused often hinges on subjective assessments of the President’s motivations and policy preferences, making it difficult to establish neutral principles.
Second, Justice Sotomayor reiterated the notion that the President should not act for “personal gain.”
- When Presidents use their authority for personal gain or as part of a criminal scheme, the public’s interest in criminal prosecution becomes paramount.
- Granting immunity to former Presidents who misuse their power for personal gain undermines the rule of law for everyone.
- By conflating personal gain with pursuing policies for the public good, there is a need to clarify the distinction, especially outside the context of bribery.
The majority’s argument that the President has the authority to act in the interest of the public good resonates with the idea that the President’s decisions are guided by what they perceive as beneficial for the country.
Third, Justice Sotomayor delves into the theme of corruption, emphasizing its importance in the discussion:
- Under the majority’s rule, any use of official power, even for the most corrupt purpose, remains immune from prosecution.
- According to the majority, a President’s use of official power, regardless of how corrupt, is shielded from legal consequences.
Justice Sotomayor’s focus on corruption underscores the Court’s reluctance to define this term and assumes a shared understanding among readers. As a legal principle, if an action is immune, the motivations behind it are considered irrelevant.
Justice Sotomayor’s approach to determining immunity by probing an official’s motivations is unconventional and not in line with typical immunity analysis procedures. This method brings to mind the first Trump impeachment, where impeachment based on improper motives raised concerns about providing Presidents with clear expectations of their conduct. The House report highlighted the broad scope of potential abuses of power that could lead to impeachment, creating uncertainty for Presidents facing allegations of improper intent.
In the case of Justice Sotomayor’s dissent in Trump v. United States, the denial of immunity for officials who abuse their power for personal gain with corrupt motives raises questions about the appropriateness of such charges in federal court. While the former impeachment charge may have been more suitable for a political context, the latter does not seem to fit within the jurisdiction of a federal court. Despite potential disagreements with the Chief Justice’s opinion on originalist grounds, the pragmatic reasoning behind it appears sound.
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