On Monday the Supreme Court dispensed with the rule of law by effectively depriving the American people of crucial information we should have had before the November election.
The question before the justices in Trump v. United States: Was Donald Trump immune from prosecution for the crimes the special counsel Jack Smith accused him of committing while president? The answer should have been obvious: No, presidents cannot commit crimes aimed at obstructing the peaceful transfer of power without facing consequences. Indeed, to my knowledge, no court has ever held that a president could be criminally immune under any circumstances.
Instead of delivering that judgment many months ago and allowing the trial to proceed, the justices have given Mr. Trump the gift of delay piled upon delay. By taking nearly 10 weeks to deliberate before returning the case to the district court — and by sending it back not even for immediate trial but for preliminary determinations that could trigger yet another round of appeals — they have extinguished any realistic hope of getting a verdict in the Jan. 6 case before November. American voters will enter ballot booths to choose between Donald Trump and President Biden without knowing whether Mr. Trump is guilty of the crimes with which a grand jury of his fellow citizens charged him.
This decision may seem like a reflection of a rogue conservative majority that can, in time, be changed. But it is a sign of a much deeper problem — one that, when the time is ripe, will require constitutional reforms to solve and perhaps even a new branch of government.
Although the opinion features a high-minded disclaimer that the court is not granting Mr. Trump or any future president complete immunity, the practical effect of this decision is presumptive immunity for all future presidents and complete immunity by delay for Mr. Trump.
This prospect was not lost on Mr. Trump. He repeatedly obtained delays to avoid trial, turning the legal machinery of the court system against itself to buy what he needed most: time — time to distract, delay and spin his own version of the story as he sought to find a way to make these devastating charges disappear. If he becomes president again, he could have his new attorney general fire Mr. Smith and deep-six the entire prosecution.
Regardless of whether you think Mr. Trump would have been acquitted or convicted in a trial, immunity by running out the clock is justice delayed and thus justice denied.
So how did our legal system get tripped up by his persistent delay strategy? And why does it have such perilous ramifications for the rule of law?
The Constitution’s framers erected a structure they hoped would ensure, as far as humanly possible, that no person, including a president, would be above the law. But they also designed the prosecutorial arm of government — from the attorney general to special counsel — to be dependent on the president. As centuries passed, this has created serious problems.
Special counsels now lack even the autonomy of independent prosecutors past because the dissent of Justice Antonin Scalia in a 1988 case called Morrison v. Olson announced what is now the accepted judicial view: that the executive branch should have sole appointment and discretionary retention power. As a result, Mr. Smith is less equipped to cope with extreme corruption at the top than his predecessors.
The attorney general, for his part, serves at the president’s pleasure. That probably explains why Merrick Garland waited about 20 months to appoint a special counsel in this case. The New York Times and other outlets have reported that in the early days of his presidency, Mr. Biden adamantly opposed bringing charges against his predecessor, most likely worried that they would backfire politically. An attorney general unconstrained by the political pressures of presidential politics might well have brought charges earlier, ensuring that we had answers before Election Day.
All this is generally accepted. But this case has exposed an even more insidious problem caused by the structural relationship between any president and the Justice Department. During the oral arguments, Michael Dreeben, the able Justice Department advocate, had to acknowledge that, because the attorney general serves at the president’s pleasure, any president can effectively secure the equivalent of immunity for whatever crimes he might choose to commit. All a chief executive must do is pick an attorney general who would give him a formal opinion stating that whatever he planned to do would be legal — up to and including a coup reversing his own election loss. That advice of counsel would, under settled principles of due process, give the president an ironclad defense every bit as good as judicially conferred immunity.
Should Mr. Trump return to the Oval Office, he could act with even greater impunity than he did in his first term, either by immunizing himself with an attorney general’s opinion (which would give him license to commit whatever crimes he chose to commit) or by using the Justice Department to engage in politically motivated prosecutions.
The American people can still vote this November to reject what would be a devastating blow to the survival of government by and for the people. But whatever one believes about the likely outcome, we can and should also begin talk of amending the Constitution to repair these structural flaws. Whether Trumpism implodes later rather than sooner, we must remember that over the course of our history, we have made progress toward a “more perfect Union” only by imagining a better future and struggling to embody it in our fundamental law. Sometimes we’ve amended the Constitution after a national upheaval as convulsive as the Civil War. At other times, however, less traumatic events affecting the presidency, in particular, have prompted constitutional reform.
To repair the profound and growing problem of presidential unaccountability, we must dare to design a separate branch of government, outside the existing three, charged with investigating and prosecuting violations of federal criminal laws.
The process of amending the Constitution is long and cumbersome and could take years. Although it requires no involvement by the president, it can happen only after our constitutional republic puts Trumpism behind it. But a decisive victory over the MAGA movement, either now or in the years ahead, could provide the political energy needed to make structural change possible, persuading a future supermajority in Congress to advance an amendment to repair the dangers embedded in our constitutional structure before it is too late.
Precedent exists for a prosecutorial arm separate from the presidency. In other nations and more than 40 states, the chief executive has no power to remove the head of the government’s prosecutorial authority. In a majority of those states, voters elect attorneys general who are independent of the governor. That would be one route for selecting an independent federal prosecutor to head the fourth branch. Another would retain appointment of the chief federal prosecutor by the president but ensure that official’s independence by preventing removal without good cause.
To be sure, there are risks. There’s no perfect system of government that individuals with insatiable thirst for dominance cannot corrupt or subvert. In the one I envision, an individual motivated less by justice than by greed for power could come to wield the immense authority of the federal prosecutor. What would prevent that person from going rogue? Courts? Congress? The people? The answer is all of the above.
By creating a fourth branch less powerful than the presidency and subject to checks and balances — both from the judiciary, with its power of judicial review, and from the legislature, with its power of the purse — we can fortify our system from the kinds of abuse we have sadly witnessed in our times and are likely to see repeated and amplified because of today’s anti-democratic decision.
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