‘With fear for our democracy,” Justice Sonia Sotomayor concludes in her brilliant dissent in Trump v. United States, “I dissent.”
She is right. Very frighteningly right.
After reading what happened at the oral argument, I knew what was coming. The court was looking for a way to carve up the baby, giving some form of immunity to former President Donald Trump without turning him into the absolute monarch. But even I didn’t expect the breadth of Chief Justice John Roberts’ opinion for the court, which effectively does almost that, with its distinction between official acts, which are “presumptively immune” from prosecution, and unofficial acts, which are not.
Because the motive of the president in acting illegally cannot be considered, as Sotomayor wrote in dissent, “the category of presidential action that can be deemed ‘unofficial’ is destined to be vanishingly small.” And to take forever, on remand to the district court, and in the endless appeals that will no doubt follow, to definitively figure out. Certainly, long enough for it to amount to a get-out-of-jail-free card if Trump is the president-elect.
Indeed, it is enough to postpone his sentencing for the 34 felony counts of which he’s already been convicted. It took Trump’s lawyers no time at all to claim that paying off a porn star to keep silent about her affair with him before he was president (and thereby rigging the election) was an “official act” because he signed the reimbursement check to Michael Cohen while he was in the White House. It’s a ridiculous argument, which hopefully Judge Juan Merchan will recognize, but not so ridiculous that Merchan wasn’t willing to delay sentencing for another two months. And count on Trump’s lawyers to try to postpone it even longer if the judge does reject it.
