Even as Donald Trump’s ongoing hush money trial eats up most of the former president’s media attention, America’s nine Supreme Court justices are quietly making up their minds about how to rule in what’s probably a much more important case. In Trump v. United States, the Court will decide whether presidents have absolute immunity from prosecution for acts committed in office.
Back in January, when the case was still in circuit court, a lot of news stories quoted the following exchange between Trump attorney John Sauer and D.C. circuit judge Florence Pan.
Judge Pan: “Could a president order SEAL Team 6 to assassinate a political rival? That’s an official act. An order to SEAL Team 6.”
Sauer: “He would have to be and would speedily be impeached and convicted before the criminal prosecution.”
Judge Pan: “But if he weren’t, there would be no criminal prosecution or criminal liability for that?”
Then Sauer hemmed and hawed about the chief justice, the Constitution, and the impeachment clause, but Pan cut to the chase and said, “I asked you a yes-or-no question. Could a president who ordered SEAL Team 6 to assassinate a political rival, who was not impeached — could he be subject to criminal prosecution?”
Sauer: “If he were impeached and convicted first.”
Judge Pan: “So your answer is a no?”
Sauer: “My answer is a qualified yes.”
Naturally, Donald Trump’s enemies did their best to splash this around the headlines as evidence of the unprecedented danger that Trump and his allies pose to the American republic. Meanwhile, Trump’s supporters tend to think that comparing the January 6 kerfuffle (in which, it’s worth noting, Trump never ordered anyone to do anything violent) to the kinds of things that Adolf Hitler did (see Night of the Long Knives) is downright silly.
But for me, reading the Pan/Sauer exchange brought to mind a different Supreme Court case, one from way back in 1978, which also dealt with the question of which government officials are entitled to “absolute immunity.” (This is contrasted with the “qualified immunity” that we often hear about after police-involved killings, and which doesn’t protect officers from being sued or prosecuted when they act in “reckless disregard” of the victim’s legal rights.)
The 1978 case, Stump v. Sparkman, dealt with the immunity of judges. And although it involved a civil suit, rather than a criminal prosecution, the actual misconduct was far more horrifying than anything Trump has ever been accused of doing.
Back in 1971, Ora McFarlin of Auburn, Indiana petitioned judge Harold Stump of the DeKalb County Circuit Court for permission to surgically sterilize her 15-year-old daughter, Linda, on the grounds that the girl was “mildly retarded” and was “associating with older youth and young men” who might get her pregnant. The judge granted McFarlin’s petition the same day, without examining any evidence, justifying his decision by citing statute or case law, or appointing a legal representative to argue Linda’s side of the case and possibly file an appeal.
A few days later, McFarlin told her daughter that she was to have her appendix removed and took her to the hospital, where the surgeons sterilized her. She didn’t know what had happened until four years later, when, two years after marrying Leo Sparkman, she had still failed to become pregnant. Upon discovering the facts of the case, the Sparkmans sued everyone involved (the judge, the attorney, Ora McFarlin, the surgeons, and the hospital director) for damages in state court. The Indiana courts, in deference to Judge Stump’s original decision, dismissed all the suits.
But the plaintiffs’ lawyers also thought they had a case in federal court, under the Civil Rights Act of 1871, which allowed private suits to be brought against “any person who, under color of any law,” conspires to deprive a person of his constitutional rights. And the U.S. Supreme Court had recognized freedom from arbitrary sterilization as a constitutional right. (Though the Court allowed eugenic sterilization in 1927’s Buck v. Bell, the law in question applied only to institutionalized persons, and only after lengthy reviews by a factfinding board whose decisions could be judicially appealed. Later, in 1942’s Skinner v. Oklahoma, the Court unanimously ruled that Oklahoma couldn’t sterilize a man for repeated petty thefts, as this would amount to cruel and unusual punishment.)
The federal district court dismissed all of Linda Sparkman’s suits on the ground that the only state action had been performed by a judge, who was “clothed with absolute judicial immunity.” But Sparkman filed an appeal, and the circuit court unanimously reversed the decision, ruling that Judge Stump’s failure to do even the most basic things that a judge ought to do before making such a serious decision meant that his ruling was not a judicial act.
Then Judge Stump appealed to the Supreme Court. There, many of the justices were skeptical of the claim that what Stump had done was not a judicial act. They noted, during oral arguments in January of 1978, that judges often sign search warrants, issue temporary restraining orders, and grant other ex parte petitions without hearing arguments from both sides or providing an opportunity for appeal, and they suggested that consenting to a parent’s request of “medical treatment” for her minor child was not very different.
Justice Potter Stewart (of “I know it when I see it” fame) was unconvinced. He put a long line of questions to Stump’s attorney, George Fruechtenicht, that included the following memorable exchange.
Justice Stewart: What if Mrs. McFarlin had presented a piece of paper to your client, the judge, and said, my daughter is incompetent. She is a kleptomaniac. She has done a lot of shoplifting. And I want your approval to have her right hand chopped off, and the judge had signed the approval, and that surgery had been performed? Would your argument —
Fruechtenicht: … that would not be an operation, Your Honor, I would suggest, that a court would even consider, especially a court such as Judge Stump —
Justice Stewart: Assume that this court did do that. … Would you be making the same argument?
Fruechtenicht: If I may respectfully suggest, Your Honor, that assumption is not germane to the issue in this particular case.
Justice Stewart: I think it tests your argument.
After a great deal of hemming and hawing, another justice joined in to force Stump’s lawyer back on topic. “Did he have jurisdiction to decide the example that Justice Stewart gives you?”
Fruechtenicht: “Of chopping off their hands? In the final analysis, yes, he would have jurisdiction to act.”
Two months later, the Court issued its decision. Judge Stump and his co-litigants won, with the majority opinion declaring that judges are entitled to absolute immunity, unless they are acting in the “clear absence of all jurisdiction.” “The fact that the issue before the judge is a controversial one,” the Court said, “is all the more reason that he should be able to act without fear of suit.”
Potter Stewart, who dissented, managed to convince only two of his colleagues that the real injustice here was that this “controversial” issue had been decided without any examination of the evidence, any legal representation for the weaker party, or any possibility of appeal.
Yet there’s still a crucial difference between Pan’s and Sauer’s “SEAL Team 6” exchange that I quoted at the beginning of this article and the Stewart/Fruechtenicht “cut off her right hand” exchange in 1978. Sauer at least acknowledged that Trump could be tried for lawless acts if he were impeached first.
In Stump v. Sparkman, on the other hand, nobody mentioned impeachment at all. There is no record of an attempt by the Indiana Legislature to impeach Harold Stump for high crimes and misdemeanours, and although the Supreme Court’s opinion didn’t forbid the Legislature from doing so, it didn’t cite impeachment as a proper limit on judicial independence, either, the way that Bradley v. Fisher, the 1871 case that until then was the main precedent on judicial immunity, had done. The gist of the Stump opinion was simply that this poor girl’s right not to suffer permanent sterilization (or, presumably, any other bodily mutilation) without any sort of trial was simply unimportant when compared to the right of judges to act “with independence and without fear of consequences.”
Apart from judges, the other large category of officials with absolute immunity from suit is prosecutors. Under present law, prosecutors cannot be sued for any form of misconduct — even for fabricating evidence, or for concealing or destroying exculpatory evidence, although an attempt to reverse the last of these is being heard by SCOTUS this term.
Defenders of this doctrine claim that absolute immunity is necessary for prosecutors to freely perform their duties without being intimidated by retaliatory lawsuits. And yet, in theory, this same concern would apply to all government employees whose actions sometimes leave other citizens feeling wronged.
It may seem puzzling that an on-duty police officer, who has only seconds to decide whether to use force against a suspect, and who might lose his own life if he hesitates, is entitled to only qualified immunity, whereas a prosecutor, who by comparison is in no hurry at all to decide which evidence to disclose to the defense attorney, is completely unaccountable. It makes sense only if you remember that the rules here are made by judges, and when judges look at prosecutors, they see people who wear suits and ties, work in air-conditioned offices, and hold degrees from the best law schools — basically, people a lot like themselves, and thus more worthy of sympathy than cops, who are usually proles.
This gets to the heart of the matter. For well over half a century, the American system of government has operated on the principle that the higher up you are, the less accountable for your actions you should be.
It’s rarely stated quite that bluntly, but in practice, it’s how things are done. To begin with, there are all those Supreme Court opinions from Earl Warren’s day and onward that state that some controversial issue or another — something like school prayer or forced bussing or abortion or marriage — must be decided by the Court because it’s too important to be left to legislators, who are influenced by politics (i.e., by democratic accountability).
And although absolute immunity as a formal, legal principle may extend only to judges and prosecutors and (maybe) the president, the culture of zero accountability is pretty much universal among the governing elite. Why was nobody punished for lying about WMDs to get our country into the Iraq war? Why did the repeated strategic failures and the senseless wastage of thousands of lives in Afghanistan and Iraq not lead to a single high military or diplomatic officer being held to account? Why was Victoria Nuland, the Obama-era diplomat most responsible for the coup that delegitimized Ukraine’s government in the eyes of many of its citizens and provoked the Russian invasion, immediately returned to high office when the Democrats regained the White House in 2021?
Why do medical researchers who take under-the-table payments from pharmaceutical companies, in exchange for always portraying their drugs in a rosy light, almost never see their careers harmed as a result? Why hasn’t a single virologist faced legal consequences for participating in gain-of-function research? Why did Congress not even try to impeach Anthony Fauci after evidence came out that he had repeatedly lied under oath about said research? Why did Fauci instead get put in charge of fighting the pandemic he helped create, and then go on to retire as perhaps the most admired scientific figure in America?
Don’t let yourself be fooled into thinking that the people who hold power in this country actually believe that no one should be above the law. They didn’t believe it in the 1960s–70s, when multiple presidents and innumerable DoD officials got off clean for lying to Congress about the progress of the Vietnam War, and when the Supreme Court decided cases like Roe v. Wade and Stump v. Sparkman. (Watergate is only a partial exception; one must remember how much Richard Nixon was hated by the broader political class.)
And our rulers didn’t believe that no one is above the law in the 2000s, when scads of officials in the Bush administration lied their country into the war in Iraq and then made careers out of hiding the fact that their attempts to build liberal democracies in the Middle East weren’t working.
They didn’t believe it during the COVID pandemic, when nobody was held to account for gain-of-function research. (It’s worth noting that you don’t have to prove that COVID-19 originated in a Chinese lab in order to prove that a lot of high-status Americans lied about whether their own government was funding said lab.)
Notwithstanding the Trump prosecutions, they don’t really believe it now, either. After all, they didn’t think that covering up adultery was a big deal when Bill Clinton did it, or that refusing to concede a lost election in a timely manner was a big deal when Al Gore did it, or that mishandling classified documents was a big deal when Hillary Clinton and Joe Biden and Hunter Biden did it.
They’re not going after Donald Trump because they actually care about limited government and the rule of law, or because they want to apply those principles even-handedly. They’re going after Trump because they feel threatened by him.
And that’s a good thing.
Twilight Patriot is the pen name of a young American who lives in Georgia, where he is currently working toward a graduate degree. You can read more of his writings at his Substack.
Image: Gage Skidmore via Flickr, CC BY-SA 2.0.
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