Discretionary Powers

The constitution. It defines the core principles of how a country should be governed, with which all laws must align. Put differently, the government of the day, no matter how popular it is or how many elected members it has, cannot frame laws that violate the constitution. Sure, one can amend the constitution and then frame new kinds of laws, but amending the constitution isn’t easy. That is by design, a feature of the constitution, not a bug. It ensures core principles of nationhood and governance cannot be overturned or changed too easily. This can be frustrating at times, but it has a deeper reason –nations were formed based on some common values, beliefs and principles. The constitution is way to ensure those core components that brought a nation together don’t get erased easily. Otherwise, the nation could split since many parts may not want to be part of a union that doesn’t care for certain values. Another key point to most democratic constitutions is that they declare the laws apply to everyone, including the rulers.

 

Keep all that in mind and look at what is happening in the US. Among the many charges against Trump, the ones relevant to this blog are about (1) spreading lies that the 2020 election was rigged and a fraud; (2) attempts to use the legal system to overturn the election results; and (3) trying to block the certification of the election results. The US Supreme Court recently ruled that the President has “absolute immunity” for actions that fall within the scope of the office’s “core constitutional powers”. By definition, that includes Trump’s threats to fire the Attorney General in 2020 for not agreeing with his post-2020 election steps. Why? Because appointing (and replacing) the Attorney General is a “core constitutional power” of the President.

 

This judgment makes things very tricky when it comes to prosecuting Trump. Both legally and politically. Which of his actions fall under “core constitutional powers”, and which don’t – that’s the legal part of trickiness. When things get that intricate, most people won’t understand it. That means any prosecution runs the risk that it will be perceived, rightly or wrongly, as politically motivated.

 

One of the Supreme Court judges wrote her dissent about the judgment:

“When he (the President) uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”

Why? Because each of those actions falls under the office’s “core constitutional powers”. Motives behind them, however personal and self-serving they may be, cannot be part of the discussion. Again why? Because once motives can be brought up, then every discretionary decision, even the ones with no personal angle, will open up the President to prosecution. Could anyone do their job if they fear that every single discretionary decision might lead to prosecution?

 

The dissenting judge wrote in frustration and outrage:

“The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.”

 

I can understand the risks and outrage she talks of. But I can also see how tricky this is. How does one know which decisions were merely judgment calls that one may disagree with or were proven wrong with hindsight, but had no malice? And which ones were driven by personal or political considerations?