Great Cases Make Bad Law

07-05-2024

Roger Berkowitz

Justice Oliver Wendell Holmes Jr. famously observed that controversial cases could exert an “hydraulic pressure” on judges that led them to make poor judgments. “Great cases, like hard cases, make bad law.” 

Such is the case with Trump v. United States, where the majority of the Supreme Court, in an opinion by Chief Justice Roberts, held that United States Presidents have either absolute or presumptive immunity from criminal prosecution for official acts, and have no immunity for unofficial acts. If a President were to shoot someone on Fifth Avenue in NYC, they would not be immune to criminal prosecution because this is not part of their official constitutional authority. However, if a President orders the military to kill a political opponent, this may well be seen as part of the president’s constitutional authority as commander in chief and thus is at the least presumptively immune from criminal prosecution. How far that presumption of immunity will go is, thankfully, not spelled out in the majority opinion. This means that future judges have an opening to limit the worst outcomes of this opinion. Still, the Court’s opinion grants the President extraordinary latitude to act without fear of criminal law consequences. Presidential power has been growing steadily for nearly 100 years, but this opinion represents a qualitative leap in the authority we grant to the President who, now, as a single individual is fully recognized as a branch of government in themselves and thus able to set his or her own constitutional interpretation on the same level with the Congress and the Judiciary. 

That the President is largely immune from criminal law does not mean that other limits on the President do not exist. Of course, the President can still be impeached for their actions. And presidents can still be voted out of office. And presidents are still by constitutional amendment limited to two terms. Constitutional and political limits remain on presidents. What is more, the President still requires cooperation from other officials: an order to the military to eliminate a political opponent can be legally resisted if the order is patently illegal. The President is not a King. But the idea that Presidents are legally immune from prosecution feeds into an idea of the imperial presidency that is detrimental to the fundamental small ‘r’ republican form of government created by the United States Constitution.  

The problem the Supreme Court Justices faced was that this was a “great case” in the sense that Oliver Wendell Holmes Jr. meant. Until Donald Trump, no U.S. President had ever been found guilty of violating criminal laws. Richard Nixon very well might have been but he was pardoned by Gerald Ford. As with Nixon, it is clear to all that former President Trump is a criminal and a con man. He desperately wanted to stay in power—his narcissism prevents him from believing he can lose—and he hired lawyers and cajoled politicians to do anything he could to undo the election. He failed. For his criminal and more importantly treasonous efforts to attack the fundamental small ‘r’ republican form of government in the United States, he should have been impeached. The failure of Mitch McConnell and other Republican leaders to do their duty in 2021 is the real travesty that led to our current horror scenario. 

The decision by the legal establishment to then subject former President Trump to criminal prosecution was and is controversial. It was likely wrong. It has certainly proven a disaster for practical purposes, as the net result is first, the resurrection of Donald Trump who now stands on the precipice of a return to the presidency, and second the dangerous precedent of Trump v. The United States.

Of course Trump committed crimes that threatened the integrity of the republican form of government guaranteed by the United States Constitution. He should have been impeached. But when he wasn’t, and when the special counsel decided to prosecute the former President as a criminal, President Biden should have followed the lead of Gerald Ford and pardoned Trump just as Ford pardoned Nixon. 
For Hannah Arendt, Richard Nixon was the embodiment of the rising tolerance for criminality, the rise of a politics dominated by “con men, rather untalented Mafiosi.” Nixon represented the “intrusion of criminality into the political processes of this country.” Arendt saw grave danger from the criminality that Nixon brought to the White House. But against those who would prosecute Nixon, President Gerald Ford was right to pardon Nixon. She writes that Ford
 

For Arendt, it is essential that President Ford did not counsel us to forget Nixon’s crimes. Amnesty, she writes, is not amnesia. It was and remains imperative that we dwell on the facts and horrors of what Presidents such as Nixon and Trump did, that we not allow their treason and criminality to fade into history. But Ford’s “premature pardon” of Nixon did at least allow the country to move forward and avoid the cycle of “mutual recriminations” that can devour whole a political world where minor criminality has become normalized. For Arendt, as controversial as Ford’s pardon may have been, it was the right way to move the country forward. 

In the case of Trump v. The United States, the Supreme Court was faced with an unprecedented situation. An obviously criminal former President has been convicted of a felony and is being tried for three other felonies. A weak current President has refused rise above partisan politics to follow Ford’s precedent and pardon Trump, allowing the nation to move forward and avoid the mutual recriminations that might swallow whole our politics if every administration were to seek to prosecute former presidents for their crimes. In this situation, struggling with a great case, the Supreme Court has issued a terribly dangerous opinion. 

The danger that Trump v. The United States poses is that it threatens to weaken the constitutional and republican limits that secure a free country from tyranny. That demagogues are the greatest threat to democracy has been known since Plato. Alexis de Tocqueville named the democratic danger the tyranny of the majority. The 1930s showed that in modern representative democracies, there is a thin line separating democracy from fascism and totalitarianism. The rise of anti-immigrant and anti-elite populist leaders around the world today shows, again, that democracy is no guarantee against tyranny and fascism. 

The modern solution to the danger of the tyranny of the majority has been to embrace constitutional limitation. Democracies empower government by the people and for the people, but constitutions provide a limiting principle that moderates and bridles the ever-fickle will of the people. The aspiration of constitutional democracy is to moderate popular rule and ensure that the rule of the people remains a mild and limited government. 

There is, however, disagreement about how constitutions limit the majoritarian will. On the more popular view, constitutions are designed to limit the democratic power of the majority through the undemocratic powers of the judiciary and the professional civil service. It has become a truism that "power corrupts, and absolute power corrupts absolutely." Our image of power is the demagogic dictator who pursues wanton self-interest. Constitutionalism assumes that power is dangerous, in need of neutering by bureaucratic and legal limits. 

There is another understanding of constitutional limitation rooted not in limiting power but in augmenting, multiplying, and dispersing power. In this view, power in itself is not bad. Power, as Baron von Montesquieu first saw, is the capacity of a people for self-government. Hannah Arendt adds that power is not the same as violence but is the "human ability not just to act but to act in concert.” Since power is at the root of popular government, to seek to limit power by law and bureaucracy is to disempower the people and sacrifice democracy to the rule of unelected elites. What is more, such limitation is rarely effective. Laws and constitutions are paper tigers that will be blown away by the winds of populist and demagogic anger. Power cannot reliably be checked by laws. As Montesquieu and later John Adams argued, laws cannot check power, only power can check power. 

The constitutional effort to moderate power by opposing powers works not by limiting power through rules and laws, but by dividing and dispersing the centers of democratic power. By multiplying powers, no one party or faction can gain enough power to overwhelm the many power centers in a republic. In Federalist 10, Madison argues that given the reality of faction, the only way to preserve freedom is to constitute a large republic where multiple factions will contest and limit each other. Arendt emphasizes the “positive accent here on faction,” the conviction that “party and faction in government correspond to the many voices and differences in opinion which must continue 'as long as the reason of man continues fallible, and he is at liberty to exercise it.'” Amidst pluralism and democracy, the constitutional way to limit excessive power is by dispersing power amongst multiple and opposing national, state, and local powers.

Arendt develops this idea of constitutional power in her account of the American Revolution in On Revolution where she argues that freedom is rooted in a “new American experience and the new American concept of power.” It was the “great good fortune of the American Revolution," she wrote, that the colonies, prior to the Revolutionary War, “were organized in self-governing bodies.” The American concept of power originates in this practice of participatory self-government. It was this American experience of power —that in Arendt's words “power springs up between men when they act together and vanishes the moment they disperse”—that spurred the American Founders to what she calls the greatest American Contribution to constitutional thinking: The principle of federalism.  

For the American Founders, the only way to found freedom in politics is to replace centralized sovereignty with decentralized federalism. The 1787 US Constitution did not create a national government that overpowered state governments. Instead, by embracing a federalist spirit that empowered states, counties, and civic organizations, the Constitution created a balance of powers not just amongst Congress, the president, and the judiciary, but amongst the manifest popular sources of power dispersed throughout the land. Arendt emphasizes the Founders’ fundamental conviction that only multiple sources of power can prevent one power center from overawing all the others; and thus, she argues that the great, and in the long run perhaps the greatest, American innovation in constitutional democracy is the abolition of sovereignty.

Arendt was no starry-eyed American booster. She valued deeply the American commitment to freedom and the American constitutional tradition of limited republican government. But she also saw the failures and limits of the reality of American constitutional republicanism. Chief amongst the failures was the fact that the Constitution provided no institutional space for citizens to meet and talk and engage in political power. Tocqueville had seen that township independence was “The principle and life of American Freedom.” And he understood that township governance was essential to the American pattern of “scattering power.” For Tocqueville and Arendt, the failure to institutionalize local government and citizen involvement in the American Constitution has allowed state and federal governments to expand their power at the expense of the republican principle of self-government the spirit of freedom. 

My reason for this foray into Arendt’s constitutional thinking is to say that the belief of many today that the way to protect our republican form of government by appeal to the legal system is as anti-republican as it is mistaken. The way to secure the country against a con man like Donald Trump is to beat him politically, which should be easy especially after his attempted insurrection on January 6, 2021. But the effort to squeeze his crimes into criminal laws has done little but confirm Trump’s own bloviating boasts that the entire system is rigged and corrupt. Enough people are convinced that the prosecutions of Trump are unjust political payback, the exact kind of corrupt political payback that Trump promises he will engage in if he is re-elected. In short, there are good reasons to worry that the strategy of legal prosecution of a former president was a mistake. As dangerous as Trump v. The United States is, more dangerous is the hand wringing over the decision and the worries that it will lead to tyranny. What leads to tyranny is a weak President who has lost his ability to communicate let alone speak persuasively and a weak and cowardly Democratic Party that seeks to disqualify Donald Trump in court rather than demolish him at the polls. 

Yes, the decision by the Supreme Court in Trump v. United States threatens to be one this country deeply regrets. The reason, as Andy Smarik writes, is that the Court’s decision to grant absolute and presumptive immunity for acts connected with their official duties strikes at the very heart of our republican form of government. The best way to respond to that danger is to reinvigorate our republican political institutions.  Smarik writes: