Rule of Law

CAC’s Ghosh Discusses SCOTUS Presidential Immunity Case at Seattle U School of Law Webinar

Just 24 hours after the U.S. Supreme Court released its monumental decision on presidential immunity in Trump v. United States, Seattle University School of Law hosted its Second Annual Supreme Court Rapid Response Webinar with nationally-renowned experts in constitutional, criminal, and election law.

In an unprecedented ruling, the court ruled in a 6-3 vote, split along ideological lines, that presidents have absolute immunity from prosecution for “core official acts” of the executive branch, and presumptive immunity for other actions that are still part of presidents’ official duties. There is no immunity for unofficial conduct.

This comes as former President Donald Trump faces four sets of formal charges, including a federal indictment for attempting to interfere with the results of the 2020 election when he was still president.

Speakers during the webinar, which was attended by nearly 300 viewers, focused on the decision’s implications for this election and broader questions about the powers of the presidency.

“These annual webinars are a new Seattle U Law tradition and a small but important example of how Seattle U Law takes seriously its role and obligation as a national center for discussion and study of the most pressing problems and controversies in law,” said constitutional law expert and Professor Andrew Siegel, who organized the webinar, in his opening remarks.

The webinar consisted of two panels. The first, moderated by Professor Pilar Margarita Hernández Escontrías, explained what the decision means, clarified what will happen next, and explored the lack of historical precedent.

Speakers on the first panel included: Professor Holly Brewer of the University of Maryland Department of History; Smita Ghosh, appellate counsel at the Constitutional Accountability Center; Professor Darren Hutchinson of Emory University School of Law; Professor Lee Kovarsky of the University of Texas, Austin School of Law; Professor Justin Levitt of Los Angeles’ Loyola Law School; and Professor Claire Wofford of the College of Charleston.

The next steps, speakers noted, will see Trump having an immunity hearing, possibly before the November election, during which the court will determine if Trump’s actions surrounding the January 6 insurrection constituted official or unofficial presidential acts, and — if they are determined to have been official — whether or not they were core official acts and therefore entirely immune to prosecution.

“The [Supreme Court’s] majority went really far here, I think much farther than they had to go to give Trump a win,” said Wofford, a political science expert. “My big takeaway is, it looks political, and therefore, it is going to be taken as political, which is unfortunate if you care about the Supreme Court.”

Ghosh, who in her role at the Constitutional Accountability Center uses history to inform constitutional debates, pointed out that there is “no constitutional provision stating that the president cannot be tried for actions taken during the presidency.” The majority opinion, she said, “didn’t use the text of the Constitution and didn’t use much history, either.”

There are many statements from the Founding Fathers “that shared a presumption that presidents could be prosecuted,” Ghosh said, noting that Justice Sonia Sotomayor had cited an example of this in her dissent.

“For Sotomayor, that was really convincing evidence that the Framers wanted the president to be held accountable, that the absence of text on protecting the president from prosecution was intentional,” she said.

Brewer firmly believes that the Founders addressed this question and made it clear that a president “could be impeached and/or punished by courts of law if they stepped beyond the pale.”

“The historical record is not silent … There was so much historical evidence, and the conservatives on the Supreme Court chose to ignore it,” Brewer said. “It is willful silence because it didn’t fit with what they wanted to do.”

She worried about the precedents it could set, such as giving the president the ability to assassinate a rival if it is considered an official act.

“This case is creating a fundamental shift in the balance of power in our Constitution that is just a ticking time bomb in terms of creating dictators,” she said. “It made me think about the entire Supreme Court differently than I had before.”

The solution, she said, will have to be reforming the court, perhaps by adding more justices so that it cannot be as politically one-sided.

The second roundtable, moderated by Siegel, took a more long-term look at the effects of the decision, discussing its implications for the powers of the presidency and the future of American democracy.

Speakers on the second panel included: Professor Jeremiah Chin of Seattle U Law and the University of Washington School of Law; Professor Rachel Lopez of Temple University Beasley School of Law; Professor Jed Shugerman of Boston University School of Law; Professor Robert Tsai of Boston University Law; Professor Ilya Somin of the Antonin Scalia Law School at George Mason University; Professor Steve Vladeck of the Georgetown University Law Center; and Andrew Wright of K&L Gates.

Tsai observed that several of the justices in the majority had previously worked in presidential administrations, suggesting that “they all came away from those experiences extremely protective of the modern presidency.”

He warned that the justices purposely avoided defining official and unofficial acts, as well as core and non-core official acts, instead using flexible and “sloppy” wording that could potentially open the door for later deciding that Trump deserves immunity if he is convicted.

“We have some principles articulated at a high level of abstraction, we’ve got no position taken on many specific things about how to apply those principles, they’re kind of kicking the can down the road,” he said. “But — and this is what’s critical — they’re clearly reserving the right to make those substantive judgments if the justices need feel they need to later.”

Vladeck expressed concern over the future of the Supreme Court, saying it is run by a majority “who are not interested in the court’s eroding credibility” and “not especially worried about how their opinions are perceived.” While it is not new to have a court with a 6-3 majority voting bloc that issues unpopular opinions, he noted that “what is new and unique about this court is, this is a court that is not looking over its shoulder.” He called for “a world in which we did more to hold the court accountable.”

Lopez, a scholar in international law, drew on examples from leaders who have been prosecuted around the world. According to her research, prosecutions and convictions of heads of state tend to increase a nation’s political polarization.

“Trials do not typically catalyze or endanger some of our democratic mainstays, such as free and fair elections or judicial independence, but they are associated with certain pro-democratic behaviors, like increased political engagement in civil society,” she said.

She noted that polls have shown that a Trump conviction would change the minds of enough Trump voters in certain swing states, such as Pennsylvania and Arizona, “to be consequential in this election.”

“This decision, because of the remand and the difficulty of moving ahead, will inevitably delay further prosecutions of Trump, and, in this way, will have an immediate and direct effect on our democracy,” she said.

At the end of the webinar, Siegel thanked the panelists for sharing their expertise and promised that the conversation would continue at future Seattle U Law events.

“This decision came down 24 hours ago, and everyone has processed these 110 pages to the extent that they have in that short timeframe,” he said. “It’s easy to sound eloquent when you have months and years to process legal developments. When it’s the next day, that’s above and beyond.”