On "Forbes Newsroom," Claire Finkelstein, Director of UPenn's Center for Ethics and the Rule of Law, slammed the Supreme Court's presidential immunity decision pertaining to former President Trump.
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NewsTranscript
00:00Professor Finkelstein, I just want to get your opinion on this decision today, the determination on whether former President Trump is immune from prosecution after a special counsel, Jack Smith, indicted him on four counts related to the January 6th insurrection.
00:16So Leanne, what I said today on Twitter and in other interviews is that I think this is the worst decision that the court has rendered in many, many years.
00:26And it will go down as among the worst decisions in the court's history, along with Dred Scott, Lochner v. New York and the Korematsu decision.
00:45This is going to be one of these decisions that is reviled for all of history because basically the Supreme Court has put the president above the law with regard to a whole host of actions that the president can take as long as he says that he is exercising his Article 2 presidential authority in doing that.
01:10What the court did was to create three categories, a category of constitutionally protected activity, a category of presumptively constitutionally protected activity, and then a category of personal capacity action in which the president is not constitutionally protective and is not immune.
01:36And the question, of course, will be what is the size of that third category?
01:41But in the first category, the highest level of protection, there is going to be a lot of damage because in that category, the president's actions are not even reviewable.
01:56And so not a court and not Congress, no one can gainsay the president's authority in this domain.
02:05So this is directly about President Trump.
02:08But does this place presidents going forward above the law?
02:12Is that one of the main concerns, the biggest concerns about this sort of decision?
02:17That is the biggest concern about this decision, because I think for all time now, presidents will be able to violate the law, will be able to manipulate the law as long as they claim that they're doing it in the exercise of some presidential capacity,
02:33which is directly dependent on their Article II authority.
02:38And they'll be able to get away with that, most likely, because the court is making this unreviewable.
02:46So what's not clear is the degree to which federal courts will have the ability to set the boundaries around these three categories,
02:57or whether or not presidents will have the ability to say, well, I'm exercising my Article II authority here.
03:03And so that sets the boundaries of the category.
03:06But I think that presidents will have a lot of ability to claim that they are exercising in their, not just their official capacities, but their constitutionally protected capacities, because it will turn on the reasons they give for their actions.
03:21And you can always find a constitutional basis for your action, given that the key constitutional phrases in Article II are so broad.
03:31The vesting clause, the take care clause, the commander-in-chief clause.
03:35These are very, very broad grants of authority, and presidents will be able to claim very often that they're acting in that capacity.