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Presidential Immunity and Judge Luttig [1]

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Date: 2024-07-11  

Ten days ago, I published a post on the Roberts Court’s decision in Trump v. U.S., the presidential immunity case. In it, I reasoned (among other things) that the Court had gone rogue, completely overstepped its judicial function, and had flagrantly violated Article III, Section 2 of the Constitution. It had acted like an unelected legislature and had made up a complex test for presidential immunity out of whole cloth, without ever looking at the facts of the case on appeal.

I’m just a blogger and retired law professor, and my main field of study and research was intellectual property law. So it’s nice to have my views not only confirmed, but immeasurably strengthened, by an expert in constitutional law.

As you may recall from the House January 6 Hearings, Judge J. Michael Luttig is a Republican constitutional law scholar of national repute. He served as an Assistant Attorney General under Republican President G.H.W. Bush, and for fifteen years as a judge on the United States Circuit Court of Appeals for the Fourth Circuit.

In an extended online interview, he laid out his evaluation of the Roberts Court’s decision in Trump v. U.S. with no holds barred. The interview runs some 35 minutes, so I’ll save readers time by summarizing the highlights, in roughly chronological order:

1. Judge Luttig saw the decision as not drawn from law at all. Instead, he considered it self-evidently “reverse engineered” from a predetermined result: giving Donald J. Trump practical immunity from the charges against him, especially those relating to the January 6 Insurrection and other attempts to overturn the results of the 2020 election.

2. Judge Luttig compared the decision to the Supreme Court’s worst-ever products, including Dred Scott v. Sandford (1857) (citing history for the proposition that Black people were “so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit”) and Plessey v. Ferguson (1896) (the infamous “separate but equal” case overruled in Brown v. Board of Education (1954)).

3. Like me, Judge Luttig saw the official-unofficial acts test as having been created by the Roberts majority “out of whole cloth.”

4. Judge Luttig characterized the reasoning in Trump v. U.S. as “sophomoric” and “childish” and the result as “astounding” and “stunning.”

5. He reasoned that the Roberts Court’s test for immunity could be applied to immunize a president who sells pardons, or who orders a drone strike on a political rival.

6. Judge Luttig stated that nothing in our Constitution or in nearly 250 years of law following it justified the Roberts majority’s reasoning or result.

7. He saw the decision as a “cruel irony,” coming two days before the Fourth of July, because it destroys our Founders’ checks and balances for both sitting and former presidents and essentially makes our President a King, contravening our Founders’ deepest desires and their belief that “no man is above the law.”

The title of my own post was “The Court Lays the Groundwork for Despotism.” That title had given me some writer’s qualms: Was I too bold? Did I overstate?

Those readers who saw all or part of Judge Luttig’s testimony in the House January 6 Hearings know how careful and often understated he is. That he would use this sort of stark language suggests not just a five-alarm fire, but an air-raid siren warning us to dive into fallout shelters.

At very least, his views should mellow those pols and voters who think that packing the Supreme Court, or depriving it of jurisdiction and setting up an alternative court (as Article III, Section 2, Clause 2, permits Congress to do) is too strong an antidote for this rogue and lawless Court. We all know what either such remedy would require: a Democratic president and Democratic majorities in both Houses of Congress. Let’s get to work.

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