Attorney Adam Cohen believes the Supreme Court's decision on presidential immunity has limited scope for former President Donald Trump, according to his opinion piece published in The Hill. Cohen said Trump v. United States is not the sweeping license some are making it out to be.
Cohen, a partner at Walden Macht Haran and Williams, attempted to explain the decision that virtually nullified the prosecution's case in Washington, D.C. and baffled Trump's critics. The attorney explained that it was not a blank check for the former president as the left was declaring.
"This court has deliberately curtailed executive power, has shown a strong preference to decide only questions before it and no more, and has strong institutionalist and textualist leanings. A new, broad presidential immunity rule, which is how many commentators understand its ruling in the Trump case, seems inconsistent with these principles," Cohen explained.
The lawyer called other analyses that came to any other conclusion "[l]azy and thoughtless." Instead, he provided a "better interpretation" of the case that "fits comfortably within the court’s judicial philosophy."
Contrary to the hysterical interpretation of the decision, Cohen believes that it merely fleshed out what's already outlined in the Constitution. The rule articulated in the recent Supreme Court decision clarifies that "the legislative branch cannot make any laws, including criminal laws, to restrict" the president.
"So the president cannot be prosecuted for a veto or an appointment, for example," Cohen added. Even the example the dissenting judges gave about "a president who stages a coup, assassinates a rival, or takes a bribe in exchange for a pardon" would not be possible under the new interpretation.
"None of these hypothetical fact patterns would qualify for 'absolute immunity' because each involves competing Constitutional powers. In such cases, the president’s acts would not be 'conclusive and preclusive," Cohen went on.
"Each would also involve unofficial conduct, which remains fully prosecutable. Presumptive immunity would be overcome for the same reasons," the attorney explained.
Presidential immunity is also already limited by the Constitution "listing bribery as an impeachable offense and stating that any party impeached and convicted by the U.S. Senate 'shall' be subject to criminal prosecution." The majority opinion specifically outlined the offense as something that becomes "unofficial conduct" that "can be prosecuted," shoring up such a limitation.
The most compelling aspect of Cohen's explanation comes from the words of Chief Justice John Roberts, who seemed cognizant of Trump's "threats of retribution" if he should get elected. Roberts seemed to want to limit immunity so that Trump could not prosecute his predecessor should he become president.
"Roberts wrote that the greater threat facing the nation is not a tyrannical presidency (for which there are other judicial remedies), but '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. Roberts is nothing if not consistent," Cohen observed.
"Twelve years ago, as the fifth vote to save the Affordable Care Act in NFIB v. Sebelius, he wrote, 'It is not our job to save the people from the consequences of their electoral choices.' It is clear he still feels that way, and he is right," Cohen added.
"Ultimately, it is up to us to make better electoral choices if we want to get out of this mess. But make no mistake: the chief justice left plenty of room for a future court to distinguish the Trump ruling and hold a corrupt or treasonous president subject to criminal prosecution," Cohen added.
The left attempted to smear the court by using incorrect rationale for finding in Trump's favor. However, as Cohen proves, this was a solid decision by the Supreme Court that does not give any president unfair leeway.
