Dead Patriots Society

Dead Patriots Society

may our children not behave like our president

Post #7 February 24, 2025

Dear Chief Justice Roberts,

With the Senate having confirmed many Trump loyalists to his Cabinet, the Nation needs the judicial branch to check this President. I implore the Court to take any opportunities that come its way to lay down clear restraints on the Chief Executive. 

I applaud the Court’s recent decision to let be a temporary restraining order on the administration’s unlawful attempt to remove the head of the Office of Special Counsel.

This President, who was plenty bold before the Court’s ruling in Trump v United States, surely read that as a green light to do whatever he pleases. One could cite many ill-considered actions by Donald Trump and Elon Musk, which seem heedless of any public interest. I note here the appointment of Pam Bondi and Kash Patel as Attorney General and F.B.I.Director, respectively.

Having regretted picks for both posts in his first term, this time Trump chose true believers. In Senate hearings, neither Bondi nor Patel could give a straightforward answer to these questions: who won the 2020 election? and, would you resign rather than follow an illegal order? The acrobatics of both betrayed an allegiance to one man.

Since Trump v. United States, is there such a thing as an illegal presidential order?  The President now enjoys “absolute immunity” in “exercising his core constitutional powers”, including “official discussions between the President and his Attorney General” [and presumably his F.B.I. director]. Or, is there such a thing as an illegal presidential order, but the issuer does not have to answer for it? Can an Attorney General be prosecuted for complying with an illegal order the President cannot be?

We will never know how many senators would have voted in February, 2021 to convict Trump of inciting insurrection, had they known a criminal prosecution for the same conduct might be ruled out. In Trump, the Court downplayed the Trump factor:

“This case poses a question of lasting significance: When may a former President be prosecuted for official acts taken during his Presidency? …[I]n addressing that question today, unlike the political branches and the public at large, we cannot afford to fixate exclusively, or even primarily, on present exigencies. In a case like this one, focusing on ‘transient results’ may have profound consequences for the separation of powers and for the future of our Republic.” Youngstown, 343 U. S., at 634 (Jackson, J., concurring)  pp.49-50.”

But the Constitution must anticipate Presidents like the one alluded to in “present exigencies”: a man deeply insecure and vengeful, whose chief concern is self-aggrandizement, not any public interest; one heedless of truth and any harm he causes others; one who stokes division and scapegoats minorities; one who insists on allegiance to himself and not the Constitution; one who, with vast financial resources, is willing to “primary” disloyal members of his party; one who will go to great lengths to avoid a peaceful transfer of power, even inciting a violent assault on Congress.

. The Constitution must anticipate a President free of any internal checks, who may be mentally ill. Can a “unitary executive” model best keep the Republic, or do we need extensive checks and balances between the three branches of government?

The Majority opinion contains approximately a dozen references to a much desired bold President, or the corresponding fear of one chilled by the possibility of criminal prosecution, and only a single reference to any countervailing interest, specifically, “fair and effective law enforcement”. Whatever balance between those interests the Court may have intended was surely lost on Donald Trump.

As many high school students know, and as the two dissents note, the Founders were equally concerned to protect against a usurper as President.

 On July 1, when the decision was announced, the return to the White House by a vengeful Donald Trump was as likely as not. We can bet he has no intention of seeing to a peaceful transfer of power in four years, should the Republican candidate lose.

I have  posted a highlighted version of Trump v. United States and excerpts on the internet  (at: https://trumptimes.blog). As I first read the dissents, I recalled Alan Barth’s book, “Prophets with Honor”, which I read in high-school in 1975. In my opinion, both Justice Sotomayor’s and Justice Jackson’s dissents rank with those in Barth’s book. I have included excerpts from the dissents in the attached Appendix. 

This is our hour of peril. Trump is the man our Founders feared.

Respectfully,

Todd Buchanan

APPENDIX

In-text references are omitted, but page numbers of the text are included. 

From Justice Sotomayor’s dissent:

To determine whether a particular type of suit against a President (or former President) could be heard, a court “must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch.”…”When judicial action is needed to serve broad public interests—as when the Court acts, not in derogation of the separation of powers, but to maintain their proper balance, or to vindicate the public interest in an ongoing criminal prosecution—the exercise of jurisdiction has been held warranted.” (p.80)

The majority relies almost entirely on its view of the danger of intrusion on the Executive Branch, to the exclusion of the other side of the balancing test. Its analysis rests on a questionable conception of the President as incapable of navigating the difficult decisions his job requires while staying within the bounds of the law. It also ignores the fact that he receives robust legal advice on the lawfulness of his actions. (p.81)

[F]ederal criminal prosecutions require “robust procedural safeguards”….The criminal justice system has layers of protections.(p.82)….

The grand jury provides an additional check on felony prosecutions, acting as a “buffer or referee between the Government and the people,” to ensure that the charges are well founded….(“[A] criminal prosecution cannot be commenced absent careful consideration by a grand jury at the request of a prosecutor….

If the prosecution makes it past the grand jury, then the former President still has all the protections our system provides to criminal defendants. If the former President has an argument that a particular statute is unconstitutional as applied to him, then he can move to dismiss the charges on that ground. Indeed, a former President is likely to have legal arguments that would be unavailable to the average criminal defendant. For example, he may be able to rely on a public-authority exception from particular criminal laws,3 or an advice-of-the-Attorney-General defense…(p.83)

If the case nonetheless makes it to trial, the Government will bear the burden of proving every element of the alleged crime beyond a reasonable doubt to a unanimous jury of the former President’s fellow citizens… If the Government manages to overcome even that significant hurdle, then the former President can appeal his conviction, and the appellate review of his claims will be “‘particularly meticulous.’” … He can ultimately seek this Court’s review, and if past practice (including in this case) is any indication, he will receive it. (p.84)

In light of these considerable protections, the majority’s fear that “‘bare allegations of malice,’” … would expose former Presidents to trial and conviction is unfounded. Bare allegations of malice would not make it out of the starting gate….[I]t took allegations as grave as those at the center of this case to have the first federal criminal prosecution of a former President. That restraint is telling. (p.84)

{B]ecause of longstanding interpretations by the Executive Branch, every sitting President has so far believed himself under the threat of criminal liability after his term in office and nevertheless boldly fulfilled the duties of his office. (p.84)

Although it makes sense to avoid “diversion of the President’s attention during the decisionmaking process” with “needless worry,”…one wonders why requiring some small amount of his attention (or his legal advisers’ attention) to go towards complying with federal criminal law is such a great burden. If the President follows the law that he must “take Care” to execute, Art. II, §3, he has not been rendered “‘unduly cautious,’”… Some amount of caution is necessary, after all. It is a far greater danger if the President feels empowered to violate federal criminal law, buoyed by the knowledge of future immunity. (pp.84-85)

From Justice Jackson’s dissent:

….We have long lived with the collective understanding that “[d]ecency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen…(p.99)

 When the Federal Government believes that someone has run afoul of a criminal statute and decides to exercise its prosecutorial discretion to pursue punishment for that violation, it persuades a grand jury that there is probable cause to indict….Then, the Government marshals evidence to prove beyond a reasonable doubt that the defendant engaged in the prohibited conduct and possessed the requisite state of mind (p.100).

. Notably, criminal defendants have various constitutionally protected rights during the criminal-liability process…

The defendant also has at his disposal many means to defend himself against the criminal charge (p.101).

….The defendant may also raise, and attempt to prove, affirmative defenses that “excuse conduct that would otherwise be punishable.”

….Consistent with our foundational norms, the individual accountability model adheres to the presumption that the law applies to all and that everyone must follow it; yet, the model makes allowances for recognized defenses. One such defense is the special privilege that Government officials sometimes invoke when carrying out their official duties (pp.101-102).

With that understanding of how our system of accountability for criminal acts ordinarily functions, it becomes much easier to see that the majority’s ruling in this case breaks new and dangerous ground. Departing from the traditional model of individual accountability, the majority has concocted something entirely different: a Presidential accountability model that creates immunity—an exemption from criminal law—applicable only to the most powerful official in our Government.

[Under the new Presidential accountability model] whether a President’s conduct will subject him to criminal liability turns on the court’s evaluation of a variety of factors related to the character of that particular act—specifically, those characteristics that imbue an act with the status of “official” or “unofficial” conduct (minus motive). In the end, then, under the majority’s new paradigm, whether the President will be exempt from legal liability for murder, assault, theft, fraud,  or any other reprehensible and outlawed criminal act will turn on whether he committed that act in his official capacity, such that the answer to the immunity question will always and inevitably be: It depends (pp.105-106).

…[T]he majority holds that the President, unlike anyone else in our country, is comparatively free to engage in criminal acts in furtherance of his official duties. 

That point bears emphasizing. Immunity can issue for Presidents under the majority’s model even for unquestionably and intentionally egregious criminal behavior. Regardless of the nature or the impact of the President’s criminal conduct, so long as he is committing crimes “pursuant to the powers invested exclusively in him by the Constitution,” … or as needed “to carry out his constitutional duties without undue caution,” …he is likely to be deemed immune from prosecution (pp.106-107).

[R]ecall that under the individual accountability model, an indicted former President can raise an affirmative defense just like any other criminal defendant. This means that the President remains answerable to the law, insofar as he must show that he was justified in committing a criminal act while in office under the given circumstances….

Under the majority’s immunity regime, by contrast, the President can commit crimes in the course of his job even under circumstances in which no one thinks he has any excuse; the law simply does not apply to him. Unlike a defendant who invokes an affirmative defense and relies on a legal determination that there was a good reason for his otherwise unlawful conduct, a former President invoking immunity relies on the premise that he can do whatever he wants, however he wants, so long as he uses his “‘official power’” in doing so….In the former paradigm, the President remains subject to law; in the latter, he is above it (pp.108-109). 

[T]he Court has unilaterally altered the balance of power between the three coordinate branches of our Government as it relates to the Rule of Law, aggrandizing power in the Judiciary and the Executive, to the detriment of Congress. Second, the majority’s new Presidential accountability model undermines the constraints of the law as a deterrent for future Presidents who might otherwise abuse their power, to the detriment of us all. 

Law, we have explained, “is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.”…. With its adoption of a paradigm that sometimes exempts the President from the dictates of the law (when the Court says so), this Court has effectively snatched from the Legislature the authority to bind the President (or not) to Congress’s mandates, and it has also thereby substantially augmented the power of both the Office of the Presidency and itself (p.110).

As to the former, it should go without saying that the Office of the Presidency, the apex of the Executive Branch, is made significantly more powerful when the constraints of the criminal law are lifted with respect to the exercise of a President’s official duties. After today’s ruling, the President must still “take Care that the Laws be faithfully executed,” Art. II, §3; yet, when acting in his official capacity, he has no obligation to follow those same laws himself.

But whatever additional power the majority’s new Presidential accountability model gives to the Presidency, it gives doubly to the Court itself, for the majority provides no meaningful guidance about how to apply this new paradigm or how to categorize a President’s conduct. 

Article II does not contain a Core Powers Clause. So the actual metes and bounds of the “core” Presidential powers are really anyone’s guess (pp.110-111).

[P]romoting more vigor from Presidents in exercising their official duties—and, presumably, less deliberation— invites breathtaking risks in terms of harm to the American people that, in my view, far outweigh the benefits (p.115).

This is not to say that the majority is wrong when it perceives that it can be cumbersome for a President to have to follow the law while carrying out his duty to enforce it. It is certainly true that “[a] scheme of government like ours no doubt at times feels the lack of power to act with complete, all-embracing, swiftly moving authority.” …. But any American who has studied history knows that “our government was designed to have such restrictions.” Ibid. (emphasis added). Our Constitution’s “separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but . . . to save the people from autocracy.” (Brandeis, J., dissenting). (pp. 115-116).

Having now cast the shadow of doubt over when—if ever—a former President will be subject to criminal liability for any criminal conduct he engages in while on duty, the majority incentivizes all future Presidents to cross the line of criminality while in office, knowing that unless they act “manifestly or palpably beyond [their] authority,”… they will be presumed above prosecution and punishment alike (p.116).. 

For my part, I simply cannot abide the majority’s senseless discarding of a model of accountability for criminal acts that treats every citizen of this country as being equally subject to the law—as the Rule of Law requires. That core principle has long prevented our Nation from devolving into despotism. Yet the Court now opts to let down the guardrails of the law for one extremely powerful category of citizen: any future President who has the will to flout Congress’s established boundaries (p.118).