All The Times Republican Supreme Court Justices Lied About Presidential Immunity Under Oath

Yesterday, the Supreme Court declared that presidents of the United States enjoy total immunity to commit crimes in office without fear of prosecution. And, to the extent the Court imagined hypothetical instances of vague and insurmountable presumptive immunity, it deemed that any documentary or testimonial evidence with the air of “the job” cannot be used in a prosecution. In other words, presidents are either definitely immune or almost definitely immune and as long as the evidence is laundered under White House letterhead juries, could never see it anyway.

After the opinion came down, the folks at Republican Voters Against Trump compiled clips of some of the justices in the majority testifying under oath about how they would never endorse the idea that the Constitution would countenance such a theory.

Lying, if you will.

In fairness to Alito, Leahy’s questioning didn’t let up on this point and Alito accidentally offered a peek at his sympathies for monarchic rule:

Judge ALITO. Senator, as I said, the President has to follow the Constitution and the laws and, in fact, one of the most solemn responsibilities of the President—and it is set out expressly in the Constitution—is that the President is to take care that the laws are faithfully executed, and that means the Constitution, it means statutes, it means treaties, it means all of the laws of the United States.

But what I am saying is that sometimes issues of Executive power arise and they have to be analyzed under the framework that Justice Jackson set out. And you do get cases that are in this twilight zone and it is—they have to be decided when they come up based on the specifics of the situation.

He’s talking about applying Jackson’s concurrence in Youngstown, dividing presidential power between powers and authority granted by Congress and powers and authority denied by Congress and identifying a middle ground where there’s neither a grant or denial.

Yesterday, Alito joined an opinion that scoffed at the very possibility that Congress can deny power to a president.

Senator LEAHY. Could the President authorize somebody, either from an intelligence agency or elsewhere, to go out and murder somebody and escape prosecution or immunize the person from prosecution, absent a Presidential pardon?

Judge ALITO. Neither the President nor anybody else, I think, can authorize someone to—can override a statute that is constitutional. And I think you are in this—when you are in the third category, under Justice Jackson, that is the issue which you are grappling with.

Senator LEAHY. But wouldn’t it be constitutional for the Congress to outlaw Americans from using torture?

Judge ALITO. And Congress has done that, and it is certainly an expression of a very deep value of our country.

Senator LEAHY. And if the President were to authorize somebody to torture or say that he would immunize somebody from prosecution for doing that, he wouldn’t have that power, would he?

Judge ALITO. Well, Senator, I think the important points are that the President has to follow the Constitution and the laws, and it is up to Congress to exercise its legislative power. But as to specific issues that might come up, I really need to know the specifics. I need to know what was done and why it was done, and hear the arguments on the issue.

It’s hard to square this need for “specifics” with a Trump decision that characterized commanding the Armed Forces as a core constitutional power subject to absolute immunity at a categorical level. This categorical reasoning — a sort of funhouse mirror approach to Jackson’s framework — steps away from the idea that a president may have specific aspects to executive constitutional powers that Congress can’t hinder and renders null and void any legislation proscribing conduct in these whole areas.

The question that the author of the Trump opinion is answering in this clip directly relates to the torture question. Leahy had just shown him the Bybee memo — the secret DOJ opinion drafted by John Yoo claiming that “the President, when acting as Commander in Chief, was not bound by the Federal law banning the use of torture.” As a reminder, Yoo is currently demanding that Republican prosecutors launch retaliatory criminal prosecutions against Democratic officeholders — lack of any actual crimes be damned!

Anyway, Roberts cites Youngstown here, attempting to sidestep the question using the “I cannot answer that without specifics” angle that Alito tried.

It gets shut down quickly.

Judge ROBERTS. I was just going to say the first issue for a Court confronting the question you posed would be whether Congress specifically intended to address the question of the President’s exercise of authority or not.

Senator LEAHY. Yes. I would think that if you pass a law saying nobody in our Government shall torture, I think that is pretty specific.

Leahy would go on to point out that Jackson himself noted that “the President has no monopoly of war powers, whatever they are,” as evidence that Youngstown did not envision a world where Congress is shut out of entire subject matters of presidential power. It’s a conversation briefly taken up again during Durbin’s questioning:

Senator DURBIN. Justice Jackson thought the bottom line on Executive power was clear in Youngstown. He said, “No penance would ever expiate the sin against free government of holding that a President can escape control of Executive powers by law through assuming his military role.” I assume you agree with that statement by Justice Jackson?

Judge ROBERTS. Yes, I do. It simply reflects the basic principle that no man is above the law, not the President and not the Congress. And that’s why courts have the obligation and have had since Marbury v. Madison to say what the law is. And if that means that Congress has acted unconstitutionally, they strike down the law. And if it means that the Executive has acted unconstitutionally, they have the obligation to block the Executive action.

Except, Roberts explains in Trump, Congress “may not criminalize the President’s actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions.” So even if there is some check on the presidency, the judiciary’s role now evaporates at the White House steps.

Meanwhile, Justice Kegmeister entered as the national cheerleader for unchecked presidential power, having said — though he would testify that he wasn’t sure if this was the exact quote — “If the President were the sole subject of a criminal investigation, I would say no one should be investigating that at all.” But when pressed, he tried to distance himself from the expansive view of presidential power that would ultimately become enshrined in the Trump opinion.

Senator FEINSTEIN. But let me ask this question precisely. The Supreme Court has unanimously ruled that a President can be required to turn over information. It upheld the subpoena for the tapes of Oval Office conversations that revealed President Nixon’s efforts to cover up the Watergate break-in. This, as you know, was U.S. v. Nixon. You have said that the Nixon case might have been wrongly decided. Was U.S. v. Nixon wrongly decided in your view?

Judge KAVANAUGH. So that quote is not in context and is a misunderstanding of my position that is up there.

He would not go on to clarify what he actually meant. Instead he called it a great moment for the Supreme Court — though he always carefully called it “great” because it was a show of judicial independence in a time of crisis, and never because of the holding itself. Nixon required the president to comply with a grand jury subpoena. Part III-C of the Trump opinion says the courts cannot consider presidential evidence at all, even to prove a case where a president did not have immunity.

If official conduct for which the President is immune may be scrutinized to help secure his conviction, even on charges that purport to be based only on his unofficial conduct, the “intended effect” of immunity would be defeated.

The Nixon records at issue included meetings with White House Counsel. There’s no way that gets produced under the new standard. Nixon is, for all intents and purposes, a mere FYI at this point.

Making it just about as useful as these justices’ testimony.

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.