By: Donald V. Watkins
Copyrighted and Published on March 14, 2024
An Editorial Opinion
When the U.S. Supreme Court granted former president and current Republican presidential nominee Donald Trump’s February 2024 petition to consider whether he enjoys presidential immunity from criminal prosecution for acts committed during his days in the White House, I knew that Justice Clarence Thomas had likely rounded up the votes he needed to deliver presidential immunity to Trump.
Thomas has prior experience in delivering the presidency to a Republican nominee on a 5-4 vote. Thomas was one of the five Justices who voted in favor of George W. Bush in Bush v. Gore (2000), thereby giving Bush the presidency in January 2001.
Trump's case will be Thomas’ second time delivering the presidency to a Republican nominee on a 5-4 vote, assuming Trump wins the general election in November. Today, Trump is leading in all credible national polls of likely registered voters.
For the record, presidential immunity for criminal acts is not expressly authorized in the U.S. Constitution or any federal statute. As discussed below, presidential immunity from criminal prosecution is a concept birthed by the U.S. Department of Justice (DOJ) in 1973.
Today’s Supreme Court is an activist judicial body that uses "power-voting" to impose its conservative, right-wing political agenda on the American people. The Court adheres to prior caselaw only to the extent necessary to facilitate its advancement of certain planks in the Republican Party's national political platform.
Because of his seniority and networking skills, Clarence Thomas operates as the "de facto" Chief Justice of the Court. This is a role Thomas relishes. He cares more about results than titles.
Two Department of Justice Memos Provide a Pathway for Presidential Immunity
On September 24, 1973 and October 16, 2000, DOJ issued memos recognizing the existence of presidential immunity for a sitting president. The 2000 DOJ memo regurgitated nearly all of the language on presidential immunity that is set forth in the 1973 DOJ memo.
The 1973 memo birthed the concept of presidential immunity, while the 2000 memo affirmed and fortified it.
According to these memos, our constitutional framework prohibits the indictment or criminal prosecution of a sitting president because it would “impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.” Implicit within this language is immunity for criminal acts a sitting president may have committed while holding office.
Even though presidential immunity is not expressly stated in the U.S. Constitution, the Richard Nixon and Bill Clinton Departments of Justice recognized such immunity.
Nixon was a Republican president whose vice president (Spiro Agnew) resigned on October 10, 1973, because of criminal activities he committed while he was a Baltimore County executive and governor of Maryland.
Agnew engaged in a criminal conspiracy, acts of bribery and extortion, and tax fraud during his time in state and local government. Agnew continued to receive payments from government contractors caught up in his bribery and kickback scheme while he served as vice president.
Nixon resigned the presidency on August 8, 1974 in the aftermath of the Watergate break-in and burglary in 1972, which he personally authorized, monitored, and covered up.
The 1973 DOJ memo addressed presidential immunity for Nixon and Agnew. According to the memo, President Nixon enjoyed presidential immunity, while Agnew did not.
Bill Clinton’s interest in presidential immunity arose from his sexual abuse of women who worked in the White House -- Monica Lewinsky and Kathleen E. Willey -- and his perjury with respect to his sexual relationship with Monica Lewinsky. Clinton, a Democrat, was also concerned about allegations swirling around in Washington that he used the presidency to get rich while in office. Clinton came to Washington financially broke and left office rich. As such, an official and enhanced recognition of presidential immunity by DOJ was a high priority for Bill Clinton.
The two DOJ memos on presidential immunity open the door for Clarence Thomas and his Republican allies on the Supreme Court to do their thing. In their view, the twice-recognized right to presidential immunity can be extended to cover all criminal acts a president committed while in office, except for treason and murder.
The Supreme Court is expected to use both DOJ memos to expound upon and justify a grant of presidential immunity for any and all acts the Chief Executive Officer of the United States (Donald Trump) engaged in while serving in office, except for treason and murder.
Of course, the Court's creation of presidential immunity through judicial fiat is an act of judicial activism. Regardless, Clarence Thomas and his block of conservatives on the Court do not care about activism when it furthers the Republican political agenda of empowering Donald Trump, overturning Roe v. Wade, expanding states’ rights, pushing political gerrymandering, restricting the regulatory powers of government agencies, and fortifying the Second Amendment’s right to bear arms.
It is unclear how Chief Justice John Roberts will vote on the issue of presidential immunity. If he joins the Thomas block of Justices, the vote in favor of presidential immunity will be 6-3.
What Does Presidential Immunity Mean for Trump’s Four Criminal Cases?
For all practical purposes, Donald Trump’s four criminal cases will end when the Supreme Court issues its ruling affirming Trump’s right to presidential immunity for acts he committed while president. This ruling should occur in late June.
It is undisputed that the acts forming the basis of the Miami, Washington, and Atlanta criminal prosecutions against Trump occurred, in whole or in part, while he was a sitting president. All of those cases would be covered by the Court's favorable ruling for Trump and tossed out immediately.
Trump’s New York state court “hush money” case would also end with the Supreme Court's ruling on presidential immunity, even if Trump's trial begins on March 25th and he is convicted in April or May. Dismissal of a criminal case may occur at any time, upon a showing of immunity from prosecution.
The reason for a dismissal of these charges is simple -- Donald Trump, or persons acting on his behalf, did not reimburse Michael Cohen for the “hush money” payments he made to porn actress Stormy Daniels until February 14, 2017. Even then, the authorized signatories for Trump's Revocable Trust Account made the first three monthly payments.
Donald Trump signed reimbursement checks made payable to Cohen from his personal bank account, beginning on May 23, 2017. Trump was well into his presidency when he began signing the reimbursement checks.
It is undisputed that Donald Trump was a sitting president when all 11 reimbursement payments were made to Michael Cohen.
It does not matter that Michael Cohen may have committed crimes with his "hush money" payments to Stormy Daniels prior to Trump assuming the presidency in January 2017. Donald Trump’s personal participation in Cohen “hush money” scheme began AFTER he was president. As such, Trump would be covered by the Supreme Court's newly announced doctrine of presidential immunity.
What is more, prosecutors in New York did not charge Donald Trump with participating in a "hush money" conspiracy with Michael Cohen. Trump is the lone defendant in his New York "hush money" case and the payment to Cohen occurred after he assumed office as president. He will likely win a dismissal of the "hush money" charges after the Supreme Court grants him immunity from all criminal prosecutions, whether state or federal.
Epilogue
Donald Trump is the luckiest criminal defendant I know. Despite his cadre of mediocre criminal defense lawyers in all four of his criminal cases, Trump will likely walk away from these four criminal prosecutions because Clarence Thomas knows how to corral 5 votes for Trump's benefit on the Republican-dominated Supreme Court.
It also appears that the Supreme Court is determined to make the rematch between Donald Trump and Joe Biden an election that will be decided by voters at the polls, without any interference from federal and state prosecutors.
Two shady U.S. presidents (i.e., Richard Nixon and Bill Clinton) had their minions in the Department of Justice create and fortify the concept of presidential immunity from criminal prosecution "out of thin air" to cover their asses upon their exit from the presidency.
Clarence Thomas did not have to birth the concept of presidential immunity. All Thomas had to do was get four of his fellow Justices to join him in expanding the scope of presidential immunity and add judicially-created exceptions for treason and murder.
Democrats only have themselves to blame for this entire quagmire. It was Bill Clinton's Department of Justice that affirmed and fortified the Nixon DOJ's creation of presidential immunity.
Democrats are always a day late and a dollar short when it comes to battling and defeating Republicans on critical political issues of national importance.