Philip Green
5 min readJul 18, 2024

I should have had a comment on the RNC, since nothing since Nazi Party’s Nuremberg Rally of 1938 has featured so vile a congregation of inhumanity. The shouts of “Mass deportation” with banners flying, as observers one after another point out how in any imaginable practice the haters are now one short step short of the Final Solution, tell us everything we need to know about the horror they’ve embraced. And now their legal gurus:

The Supreme Court v. Democracy

As promised: Part 2: A Coffin for Democracy

So, then, what’s all the shock about? Simple: as everyone knows by now, the ruling makes a distinction between official actions of a president, which have immunity from prosecution; and those of a private citizen. And that distinction, is then elaborated by Chief Justice Roberts so as to cover the concept (by his invention) of “presumptively official,” and as the opinion makes clear, that is not just a presumption but a strong presumption.

As the three in the minority point out (in Sotomayor’s dissent) the incredible and shocking consequence, namely the President–any President–is given total control over the Department of Justice, since he is officially its head (as indeed of all Cabinet departments), and therefore is potentially in charge of all judicial or extra-judicial processes: up to and including assassinations, disposals of due process, torture…why go on? Oh yes, he could conclude by shooting Joe Biden on 5th Avenue.

If these acts are committed, or ordered by a president to be committed, in the pursuit of knowledge about a crime which the President has charged to some inferior’s account–is there any limit to that empowerment? No, he is above the law. The concept of an independent judiciary is hereby overthrown and so the constitutional republic has been overthrown. The United States of America have been overthrown. Those six judges (or five?) are the worst criminals in the nation’s history. They are walking around unchallenged, like a serial killer, calling to mind one of those Dean Koontz or Stephen King novels about a hidden institution–let’s call it Heritage House — in which robotic children are being brought up to be murderous super beings.

Not far off. “The Court has defined exactly what the would-be autocrat has insisted all along, if he succeeds to the Presidency then he, unchallenged, will define the parameters of ‘Justice’ exactly as he wills, be free to do anything, destroy the lives and jobs of anybody, within those parameters.” Or let us say he sold a secret military document to an enemy agent because he, in his official guise, had declassified it. There is no limit.

The English-language word we use for unlimited behavior is “evil.” “ Trump and others after him are absolutely immune to prosecution for actions taken while exercising their ‘core constitutional powers,’ and entitled to the presumption of immunity for their official acts.” To spell this out:

At a minimum, the President must therefore be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the of the Executive Branch.” And what is that “authority and functions.’” at a minimum? Elsewhere the Chief Justice tells us that evidence uncovered by invading this near-absolute authority will not be admissible either. It is the mind of an absolutist investigating the mind of a tyrant.

However, there is a loophole in all this, and we must eagerly await to see how if at all it is exploited in the two cases at stake: the January 6 case brought by Jack Smith before Judge Chutkan, and the New York case now before Judge Merchan for sentencing, now postponed for decision until September 18, so the judge can investigate the effects, if any, on his putative decision.

To explain these two possibilities, we have to take note that the Court’s immunity decision as affecting Trump v. U.S. directed the trial court to hold hearings on what portions of the indictment can survive. At first glance, the problem is that evidence in such investigations of “official acts” cannot be introduced “even on charges that purport to be based only on his unofficial conduct.” Exclamation points! Thus any exercise of control over the Cabinet including the Justice Department, cannot be challenged, since the Court implicitly adopts the “unitary theory” of administration: not to put too fine a point on it, the administration belongs to the President, including the Justice Department, no matter how corrupt his use of that institution.

But Judge Chutkan has in fact the substantial task–perhaps not unwanted! — of performing the official-unofficial test for certain other methods of behavior described in the indictment. Those include Mr. Trump’s attempts to use lies about election fraud to persuade state officials to change the results of the race as well as his plan to create false slates of electors declaring that he won in several swing states he actually lost. They also include his campaign to pressure his vice president, into throwing the election his way during a certification proceeding in the Capitol on Jan. 6, 2021 — and, once that effort failed, his attempts to exploit the violence and chaos that erupted at the Capitol to further delay the election certification.

None of these activities can be found within the ambit of the opinion. My thoughts about this possibility were borne out by the assembled pundits on MSNBC: the court’s concept of “presumption of official” was a trap it laid for itself: having effectively sent the case back to Judge Chutkan to make a finding of “official” or “unofficial,” that mandates an evidentiary hearing before a jury. The Jury will thus be making a finding of fact, which is not reviewable by any collection of judges, in any court of law, since they will not have the data before themselves.

Still, one might think that trying to remain in office after losing an election is very clearly not a legitimate presidential act or anything the Constitution provides sanction to do. But who in fact will make that decision, and must it only be presumptive rather than absolute, to overturn a jury that is drawn from all of us?

Quite clearly, to overturn any such finding, if the jury so makes it, would be, finally and forever, to abolish trial by jury in the United States — not just for a President but for any well-situated defendant. Non-reviewable judgments of fact are the absolute bedrock of the jury system. And this one may well be getting made before the election! Are my glasses too rosy-colored? Probably–but this gives us something to watch for.

In this respect there is also the Manhattan case, which centers on acts Mr. Trump took as a candidate, not a president, and does not involve any federal judge. To be sure, Trump’s lawyers are likely to argue that prosecutors built their case partly on evidence from his time in the White House.

Again, under the Supreme Court’s ruling, prosecutors not only may not charge a president for any official acts, but also cannot cite evidence involving official acts to bolster other accusations. But making a payoff to a woman in order to avoid the appearance of adultery while a candidate for election: surely that will be a tough one for Todd Branche. And however Judge Merchan proceeds, it will be as a New York State case, not a Federal one. That also might make a big difference.

July 4th is past, We’ll all be waiting. . It ain’t over til it’s over.