The Law Must Hold
By Steven J. Grisafi, PhD.
Based upon my reading of the Miscellaneous Order #23-939, the Supreme Court will rule upon the question of the extent of presidential immunity granted to a president for official acts alleged to be criminal. I think we already know the answer to that question. The President enjoys full immunity for official acts. The Supreme Court ought to have ruled that promptly. The issue then becomes, and this would need to be addressed in an evidentiary court proceeding, which is something the Supreme Court never does, as to whether the alleged criminal acts of President Trump were official acts. Just as one cannot create a contract for an illegal act, no criminal act can be construed as official.
I consider the way in which the Chief Justice addressed the request for a Stay by the Defendant Donald J. Trump to be significant. The Chief Justice referred the matter en banc, to the entire court. The votes of five Justices are needed to grant a Stay. Imagine that a minimum of four Justices voted, not to grant the Stay requested by the Defendant Donald J. Trump, but to revive and grant the request for a Writ of Certiorari requested by the Plaintiff Jack Smith. In lieu of a Stay, Mr Trump would, of course, welcome the opportunity for an Oral Argument with any subsequent delays it would cause to the trial proceedings. What I wish to explore is why the Supreme Court would deny the request of the Prosecutors, led by Jack Smith, but then grant Certiorari to the Defendant if the Court considered the rulings of both the District Court and the Court of Appeals to be essentially correct. Consider then the significance of this hypothetical grant of Certiorari, originally requested by the Plaintiff and denied prior to the ruling issued by the Circuit Court of Appeals, as the response to a request for a Stay from the Defendant. The Chief Justice’s stipulation of explicit boundaries placed upon the question to be addressed by the Court lend credence to an argument that this particular issue is entwined with other questions to be addressed by the Court.
In my hypothetical scenario the Petitioner is Jack Smith. He must submit his argument to the Court no later than March 19th. The Respondent is Donald Trump. He has until April 8th to submit his argument. The Petitioner then has one week until April 15th to reply to the argument presented by the Respondent. It may be the issue of Case #23-719 that is entwined with the matter of the current Case #23-939 that caused what most Americans have perceived as a delay in the response to the request for a Stay made by the Defendant. The strict boundaries placed upon the question of Case #23-939 that the Court intends to address would seem to indicate that matter beyond the periphery of the question to be addressed by the Supreme Court is considered settled, in the minds of the Justices, by the rulings issued by lower courts. Should the Supreme Court rule, as this author expects, that a president has full immunity for all official acts committed while in office, the case against former President Donald J. Trump devolves into the question as to what the prosecutors allege Donald Trump did that was criminal. Did he or did he not conspire to obstruct an official proceeding?
I consider it most unfortunate that Justice Florence Pan of the Washington, D.C. Circuit Court of Appeals asked the question that she did about a President ordering U.S. Navy Seal Team Six to assassinate a political rival. The question indicates a complete misunderstanding of the responsibilities of a military officer and their duty to reject illegal orders. Any such order contemplated by Justice Pan would never proceed down the chain of command to the sailors of Seal Team Six. This unfortunate display of ignorance confuses the distinction between an official act and any other act that can never be construed as official because it is prima facie known to be illegal.
I believe that regardless of how the Supreme Court rules upon Case #23-939 the matter needs to be remanded back to the District Court of Justice Tanya Chutkan to determine if the actions undertaken by Donald Trump were criminal. It ought to have been recognized from the beginning that the trial in District Court must proceed to establish the evidentiary base upon which any higher court would have ruled. Consider that the Chief Justice denied the request from Plaintiff Jack Smith for Certiorari prior to submission of the matter to the Circuit Court of Appeals. The question arises: Was the trial before the Court of Appeals an evidentiary proceeding? If not the matter must return to District Court for the establishment of fact: Did the actions undertaken by President Donald Trump constitute conspiracy to obstruct an official proceeding? As I see it the trial must occur.
If Donald Trump wins the November 2024 presidential election most people expect that he would appoint as US Attorney General someone who would disband the Office of the Special Counsel Jack Smith. Assuming that the trial within the District Court of Justice Tanya Chutkan was already scheduled, or in progress, would it not be her decision to allow the Attorney General of the District of Columbia to resume the prosecution if the US Attorney General disbands the Office of the Special Counsel?
If elected Donald Trump would not become President until Inauguration Day. The Supremacy Clause indicates that any federal official has immunity from the state criminal law. Assuming that the Supreme Court rules as I expect, that the President has full immunity for all official acts, but no immunity for criminal acts, the Supremacy Clause does not shield Donald Trump from a prosecution resumed by the Attorney General of the District of Columbia, which was dropped because of disbandment of the Office of Special Counsel Jack Smith. The Supremacy Clause only shields a federal official from state law. It does not shield any federal official from federal law, The Attorney General for the District of Columbia would have jurisdiction for the prosecution because the crimes of January 6th 2021 occurred in the District of Columbia.