Justice Jackson Breaks Down What Trump v United States Means

JUSTICE JACKSON, dissenting.

JUSTICE SOTOMAYOR has thoroughly addressed the Court’s flawed reasoning and conclusion as a matter of history, tradition, law, and logic. I agree with every word of her powerful dissent. I write separately to explain, as succinctly as I can, the theoretical nuts and bolts of what, exactly, the majority has done today to alter the paradigm of accountability for Presidents of the United States. I also address what that paradigm shift means for our Nation moving forward.

I

To fully appreciate the profound change the majority has wrought, one must first acknowledge what it means to have immunity from criminal prosecution. Put simply, immunity is “exemption” from the duties and liabilities imposed by law. Black’s Law Dictionary 898 (11th ed. 2019); see Hopkins v. Clemson, 221 U. S. 636, 643 (1911) (explaining that immunity is “exemption from legal process”). In its purest form, the concept of immunity boils down to a maxim— “‘[t]he King can do no wrong’”—a notion that was firmly “rejected at the birth of [our] Republic.” Clinton v. Jones, 520 U. S. 681, 697, n. 24 (1997) (quoting 1 W. Blackstone, Commentaries *246 (Blackstone)); see United States v. Burr, 25 F. Cas. 30, 34 (No. 14,692d) (CC Va. 1807).

To say that someone is immune from criminal prosecution is to say that, like a King, he “is not under the coercive power of the law,” which “will not suppose him capable of committing a folly, much less a crime.” 4 Blackstone *33. Thus, being immune is not like having a defense under the law. Rather, it means that the law does not apply to the immunized person in the first place. Conferring immunity therefore “create[s] a privileged class free from liability for wrongs inflicted or injuries threatened.” Hopkins, 221 U. S., at 643.

It is indisputable that immunity from liability for wrongdoing is the exception rather than the rule in the American criminal justice system. That is entirely unsurprising, for the very idea of immunity stands in tension with foundational principles of our system of Government. It is a core tenet of our democracy that the People are the sovereign, and the Rule of Law is our first and final security. “[F]rom their own experience and their deep reading in history, the Founders knew that Law alone saves a society from being rent by internecine strife or ruled by mere brute power however disguised.” United States v. Mine Workers, 330 U. S. 258, 308 (1947) (Frankfurter, J., concurring in judgment).

A corollary to that principle sets the terms for this case:

“No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.” United States v. Lee, 106 U. S. 196, 220 (1882).

We have long lived with the collective understanding that “[d]ecency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen,” for “[i]n a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously.” Olmstead v. United States, 277 U. S. 438, 485 (1928) (Brandeis, J., dissenting).