A former White House attorney for Donald Trump who had been a prominent opponent of the former president’s claims of immunity in special counsel Jack Smith’s case related to the Jan. 6, 2021, Capitol incursion strongly criticized Supreme Court Justice Sonia Sotomayor’s dissent in the ruling, saying it was “hysterical” and contained “screaming, no analysis.”
The court ruled 6-3 on Monday that Trump enjoyed immunity for official acts he committed as president under Article II of the Constitution, with Chief Justice John Roberts arguing in the majority opinion that ruling otherwise would create “an executive branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next.”
The opinion still left open the possibility that Trump would be prosecuted for crimes acting solely as a candidate for president, as the chief executives “enjoys no immunity for unofficial acts, and not everything the President does is official.”
However, it said, a president “may not be prosecuted for exercising his core constitutional powers” and “is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.”
It is unknown where this leaves Smith’s Jan. 6 case, although presumably it won’t be tried before the November election — which is part of the bummer for the Democrats.
The other bummer was Sotomayor’s apocalyptic vision of what immunity for official acts entailed, which was the most quoted — and febrile — part of the decision in Trump v. United States.
“Imagine a President states in an official speech that he intends to stop a political rival from passing legislation that he opposes, no matter what it takes to do so (official act),” Sotomayor wrote.
“He then hires a private hitman to murder that political rival (unofficial act),” she said. “Under the majority’s rule, the murder indictment could include no allegation of the President’s public admission of premeditated intent to support the mens rea of murder. … When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution.
“Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”
Are you voting for Donald Trump?
To Ty Cobb — a former Trump White House lawyer turned vocal Trump critical who had signed on to an April brief arguing that the former president had no immunity from prosecution, according to Axios — this wasn’t exactly the strongest argument against the ruling.
Cobb, who said he’d anticipated an adverse ruling from oral arguments, told CNN on Monday that the court “went a little further than I anticipated” and that he was “disappointed” by many aspects of the decision, including “the inability to use evidence pertaining to official acts with regard to some of the crimes.”
However, he acknowledged that “Jack Smith can proceed, you know, should he decide to” and that the “case is not dead.”
As for Cobb’s most acute frustrations, those were reserved for Sotomayor.
“So I thought her dissent was a little hysterical, and it really offered no analysis. A lot of — a lot of screaming, no analysis,” he said. “And I think that was unfortunate.”
Cobb added he was “disappointed that Justice [Elena] Kagan didn’t write a dissent that sharply focused on the separation of powers issues, which are the core issues here.”
“You can’t design a rule that is solely about Trump without putting the democracy at risk and eliminating some of the restraints that have historically gotten us through 250 years,” he said.
“Separation of powers is the cornerstone of the Constitution, and as much as I wish Trump would get his comeuppance and due for his evil conduct, the reality is you just can’t go out and have a result-oriented effort by the Supreme Court,” Cobb said. “It needs to be based on principle and precedent.
“And I think for the most part this is, I’m — I was disappointed that Justice Sotomayor didn’t address at all the separation of powers issue, which is what the case was decided on.”
I suppose this can and should start from the obvious: He’s right. But there’s another obvious point he’s missing, and this is always what happens when anti-Trump Republicans decide to make common cause with those who are guided by their undying enmity toward the other side, not the rule of law.
Cobb is an attorney, and I’ll concede I am not, although I think it’s a sound rule of law that we don’t have, as Roberts noted in his majority opinion, “an executive branch that cannibalizes itself” by criminalizing the choices the last executive made under his official duties as chief executive.
However, deciding these issues on the legal specifics and whether immunity is enumerated under Article II of the Constitution was never the ballgame for the left. It was always, very specifically, deciding a way that Trump could be tried for Jan. 6 and worrying about what that precedent meant later. Period.
Because the court has ceased to function as a permanently left-leaning legislative branch of the federal government, the remaining Democrat-appointed judges are left to fearmonger about what immunity for official acts means without acknowledging the checks and balances that prevent these things from occurring.
It does not seem to have occurred to Sotomayor — or at least to those who made this particularly febrile paragraph in her dissent a viral thing — that any nation in which elite special forces troops can kill the opposition and the president that ordered it can be beyond legal consequence is also beyond the point where a Supreme Court ruling on presidential immunity for official acts vs. unofficial acts matters.
That the decision does matter (and that said decision still leaves Jack Smith’s prosecution against the de facto political opposition in the United States open, if somewhat delayed from the fast track he wanted it on) means this was all pure hysteria and screaming.
Sotomayor likely knows that. Cobb certainly knows that. If only CNN and the media were so enlightened.
