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How Trump’s Lawyers Would Fail My Constitutional Law Class With Their Supreme Court Brief On Criminal Immunity

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Donald Trump’s Supreme Court brief characterizes historic cases and documents as saying one thing when they say the complete opposite. erhui1979/Digital Vision Vectors/Getty Images

Former President Donald Trump claims that the president of the United States is absolutely immune from criminal prosecution.

On March 19, 2024, Trump filed his brief with the U.S. Supreme Court in the case brought by special counsel Jack Smith for Trump’s alleged criminal attempts to overturn the 2020 election.

Trump argued in the brief that the Supreme Court must dismiss the criminal indictment against him because his alleged conduct constituted official acts by a president and that presidents must be afforded absolute immunity for their official acts.

To support his contention, Trump cites Supreme Court cases, the Federalist Papers, and other writings from legal scholars. Trump argues that these documents show presidents hold absolute immunity from criminal prosecution.

But as a constitutional law scholar, I know that those writings, in fact, say the opposite. They say U.S. presidents are not absolutely immune from criminal prosecution.

If a student of mine had submitted a brief making the arguments that Trump and his lawyers assert in their Supreme Court filing, I would have given them an F.

The top of a fancy government building, with the phrase 'EQUAL JUSTICE UNDER LAW' inscribed in it.
The U.S. Supreme Court will rule on Trump’s immunity claims.
Jason Sanderford/iStock / Getty Images Plus

Sitting in judgment

It is standard practice for a person involved in a lawsuit and their lawyers to quote past cases and other legal writing to support their arguments.

It is also common for litigants to quote the Supreme Court justices themselves – either from their past opinions or other writings, such as law review articles – to advance their arguments.

But it is not standard practice to characterize those cases and documents as saying one thing when they say the complete opposite.

Trump begins by citing Marbury v. Madison from 1803, which is one of the court’s most consequential cases. He argues that Marbury v. Madison said that a president’s official acts “can never be examinable by the courts.”

But Trump ignores the paragraph that immediately follows that passage in the Marbury opinion, which states that when Congress “proceeds to impose” legal duties or directs the president to “perform certain acts,” the president “is so far the officer of the law (and) is amenable to the law for his conduct.” In other words, when Congress enacts a law, the president must follow it.

Trump also argues that, according to the Constitution, “federal courts cannot sit in judgment directly over the President’s official acts.”

This assertion is contrary to scores of cases where federal courts have reviewed presidential acts. While the federal courts have generally refused to direct the president to perform a specific task, federal courts regularly determine whether a president’s actions are legally permissible.

Take Biden v. Nebraska. President Joe Biden sought to cancel more than $400 billion in federal student loans. Biden argued that he had the authority to do so under the Higher Education Relief Opportunities for Students Act passed by Congress in 2003 – known as the HEROES Act. That act grants the secretary of education the authority to “waive or modify” student loan programs during national emergencies.

Several conservative-leaning states challenged the loan forgiveness, and the Supreme Court concluded that Biden did not have the legal authority to cancel the federal student loans under the HEROES Act because the plan was not a “waiver” or “modification.” Here, as they did in countless other cases, the federal courts sat “in judgment directly over the President’s official acts.”

Citing Kavanaugh

But the main legal question remains – whether a president holds, as Trump claims, absolute immunity from criminal investigations and prosecutions for a president’s official acts.

From a policy perspective, Trump claims that “functional considerations” warrant the absolute immunity that he seeks because if a president is subject to criminal liability, that legal exposure “will cripple … Presidential decisionmaking.”

In front of a crowd stands  man in a dark coat on a big stage with a banner above that says 'SAVE AMERICA MARCH.'
Donald Trump speaks at the Save America March rally on Jan. 6, 2021, in Washington, D.C.
Photo by Tayfun Coskun/Anadolu Agency via Getty Images

To further this claim, Trump relies on a 2009 law review article by Judge Brett Kavanaugh, then of the U.S. Court of Appeals for the District of Columbia Circuit, who now sits on the Supreme Court. Trump quotes Kavanaugh, who wrote that “a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President,” which Trump provides as evidence of support for the position that a president requires absolute immunity.

But even a cursory reading of Kavanaugh’s article reveals that Kavanaugh argued only for a deferral of a criminal prosecution until after a president leaves office.

As Kavanaugh states, “The point is not to put the President above the law or to eliminate checks on the President, but simply to defer litigation and investigations until the President is out of office.”

Simply put, the underlying premise of Kavanaugh’s article is that a president can be held criminally liable for his conduct.

Civil cases vs. criminal cases

It is true, however, that presidents enjoy absolute immunity from civil liability for their official acts. That issue was settled in Nixon v. Fitzgerald.

In that case, A. Ernest Fitzgerald lost his job as a management analyst with the Air Force. According to Fitzgerald, he was terminated in retaliation for his testimony before Congress about cost overruns of $2 billion on a transport plane project.

After tapes emerged in which then-President Richard Nixon was heard ordering that Fitzgerald be fired, Fitzgerald sued Nixon for retaliatory termination. The Supreme Court concluded that a president enjoys absolute immunity for his acts “within the outer perimeter of his official responsibility.”

Nixon v. Fitzgerald is a civil case. Trump urges the court to extend the presidential immunity established in this civil case to criminal matters. But he overlooks the fundamental difference between the civil justice system and the criminal justice system.

The purpose of the civil justice system is to make an injured party whole again. But the purpose of the criminal justice system is to protect society, because crimes are understood to be harms against the public.

The Conversation

Wayne Unger does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

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Oman Serves As A Crucial Back Channel Between Iran And The US As Tensions Flare In The Middle East

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Iran’s foreign minister, Hossein Amirabdollahian, meets his Omani counterpart, Sayyid Badr Albusaidi, in Tehran on July 17, 2023. Atta Kenare/AFP via Getty Images

Prior to launching a barrage of drones and missiles at Israel on April 13, 2024, Iran reportedly got word to Washington that its response to an earlier strike on its embassy compound in Syria would seek to avoid major escalation. The message was conveyed via the Gulf Arab state of Oman.

The current crisis in the Middle East is one that officials in Oman have spent years trying to avoid. Located across the Strait of Hormuz from Iran, and with close defense and security ties to the U.S. and the U.K., Oman is aware that tit-for-tat attacks raise the risk of a broader war that would engulf countries and armed nonstate groups across the region.

Full-blown war could be triggered by further escalatory actions by Tehran or Jerusalem. But it could also occur through miscalculation or misunderstanding, especially given the lack of official bilateral channels for dialogue and de-escalation.

And this is where Oman steps in. For years, the Gulf state has quietly built a track record of easing regional tensions through diplomacy. It has continued to play this role since the Oct. 7 attack by Hamas. In the months since that assault and Israel’s response in Gaza inflamed the region, Oman has held high-level dialogues with Iran, hosted British Foreign Secretary David Cameron for talks on security in the Red Sea, and called for a cease-fire in Gaza.

It could now play a crucial role in keeping a channel of communication open between the U.S. and Iran as parties seek to tamp down tensions.

Standing apart from regional rivalries

Along with neighboring Qatar and Kuwait – as well as Switzerland, which represents U.S. interests in Iran in the absence of an American embassy – Oman has played a critical role in back-channel diplomacy.

But Oman’s approach is distinct from that of other nations. Rather than participating in direct talks, it creates space for dialogue, serving as a facilitator rather than a mediator.

Multiple reasons account for the Omani decision to act as a facilitator. Unlike several of the other Gulf states, such as Saudi Arabia and the United Arab Emirates, Oman lacks a history of tense relations with Iran.

Rather, Omanis recall that Iran under the shah provided support to Oman during the 1970s when the Gulf state’s then young new sultan, Qaboos bin Said, was fighting a decadelong uprising in the southern province of Dhofar.

Even after the shah was ousted in the 1979 Iranian revolution and replaced by a clerical regime headed by Ayatollah Khomeini, Oman stood apart from others in the region and declined to get involved in regional rivalries and competition for geopolitical influence that marred Iran’s ties with other Gulf states.

Secret back channels

Representing a small state in a volatile region, Omani officials have created diplomatic spaces that permit them to engage with regional issues on their own terms and in ways that play to their strengths. As Sayyid Badr Albusaidi, a career diplomat who became the Omani foreign minister in 2020, noted back in 2003, “We try to make use of our intermediate position between larger powers to reduce the potential for conflict in our immediate neighborhood.”

Unlike Qatar, which has attracted worldwide attention over its role as a mediator in Hamas-Israel negotiations, Oman engages less in mediation and more in facilitation.

This is an important distinction and one the Omanis have maintained in regards to engaging with U.S. and Iranian officials, as well as Saudi and Houthi representatives during the decade-long Yemeni civil war.

Omani facilitation takes varied forms. It can consist of passing messages and maintaining indirect channels of communication between adversaries or arranging back channels and hosting discreet meetings.

There is little of the publicity seen in Qatar’s mediation initiatives, such as the talks with the Taliban that produced the 2020 Doha Agreement for the withdrawal of U.S. forces from Afghanistan.

But Oman’s approach can nonetheless yield results. In his memoir, “The Back Channel,” written after his retirement from the State Department and before his appointment as President Joe Biden’s director of the CIA, William Burns provided a detailed account of the Omani role in facilitating the back channel between U.S. and Iranian officials in 2013 that evolved into negotiations that produced the the Iran nuclear deal of 2015.

That back channel began after Iranian officials passed a message through Oman to the U.S. in 2012 suggesting a meeting in Muscat, the Gulf state’s capital.

Burns recalled that the head of Omani intelligence “greeted both delegations as we walked into the meeting room” and “offered a few brief words of welcome and then departed.”

The back channel remained secret throughout eight rounds of generally constructive dialogue that marked the longest and most sustained engagement between Iranian and U.S. officials since 1979.

Hosting adversaries

While the thaw between the U.S. and Iran didn’t last, the Omani back channel highlighted several factors key to the success of any attempt to dial down tensions between seemingly implacable adversaries.

The trust both sides had in Omani officials was critical, and the positive outcome of the meetings built confidence in each side’s use of Omani channels.

Oman’s role as a facilitator of indirect engagement between the U.S. and Iran assumed added importance with President Donald Trump’s decision to withdraw the U.S. from the Iran nuclear deal in 2018 and the failure of the Biden administration to reenter the agreement.

Seemingly the only time Oman has not been willing to serve this role – when tensions soared after the U.S. killing of Iranian Gen. Qassim Soleimani in January 2020 – was because Sultan Qaboos was critically ill. In Oman’s absence, the Swiss led the back channel.

Tamping down tensions

During the heightened tensions since the Oct. 7 attack in Israel, Oman has passed on messages between Iranian and U.S. officials. In January 2024, Omani officials hosted delegations of senior negotiators from both countries, shuttling between the representatives in separate rooms.

Even as a wider regional conflict loomed in the Middle East after Israel presumably bombed an Iranian embassy compound in Damascus on April 1, Oman was on hand to try to tamp down tensions.

On April 7, Iran’s foreign minister, Hossein Amirabdollahian, visited Oman – providing an opportunity for Omani officials to debrief the U.S. and other Western officials on Iran’s thinking as Tehran planned its response to the Damascus attack.

And while the current crisis in the Middle East is of a magnitude that Oman alone cannot address, the ability of trusted intermediaries such as Oman – along with Qatar and Switzerland – to keep open channels of communication is crucial to minimizing the possibility of any accidental escalation on the Iranian side, and to complementing U.S. and European dialogue with Israeli leaders in the quest to find a peaceful resolution to the standoff.

The Conversation

Kristian Coates Ulrichsen does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

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Ireland At The Crossroads: Can The Ancient Brehon Laws Guide The Republic Away From Anti-Immigrant Sentiment?

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Undocumented migrants in Ireland hold a demonstration in 2017. Artur Widak/NurPhoto via Getty Images

Ireland’s new prime minister is a relatively young man leading a comparatively young republic that is experiencing several unprecedented challenges.

Simon Harris was confirmed as “taoiseach,” or prime minister, on April 9, 2024, following the surprise resignation of his predecessor, Leo Varadkar.

The 37-year-old Harris takes the helm of a country very much at the crossroads of change. Local, national and presidential elections are all on the horizon, with the outcomes potentially determining the form that Irish democracy – and quite possibly unity in an island partitioned between a British-ruled north and an Irish republic in the south – will take.

Underlying these decisions is the question of how Irish voters will respond to the challenge of what is being called the “New Ireland” – a country in which approximately 20% of the population was not born in the republic, with a similar number identifying as nonwhite Irish.

A history of immigration

For a country whose main export, historically, has been its people – with 8 million leaving between 1815 and 1914 in large part because of a famine – and one that experienced little inward immigration until recently, this marks a substantial shift.

Moreover, change has taken place in a relatively short space of time and has had a significant impact on the republic’s current population of just above 5 million.

In 2023, 141,600 people immigrated to Ireland, representing a 15-year high. The majority are returning Irish nationals, many from the United Kingdom, encouraged by Ireland’s buoyant economy and ties to the European Union. But there are also a sizable number of Ukrainian refugees. A smaller number come from India, Brazil or Africa, the latter including refugees from the main conflict zones of Eritrea, Sudan, Somalia and the Democratic Republic of Congo.

The record levels of immigration, coming at a time of a severe housing shortage in Ireland, has led to a backlash that boiled over on Nov. 23, 2023. Triggered by the stabbing of three young children and their care assistant in the center of Dublin by an immigrant of Algerian origin, a mob unleashed looting, arson and vandalism on the streets of Dublin. The Garda (police) commissioner blamed the events on a “lunatic, hooligan faction driven by a far-right ideology.”

Anti-immigrant sentiment has been accompanied by a hashtag campaign, #irelandisfull. And it isn’t only taking the form of street violence. The overtly anti-immigrant Ireland First was officially registered as a political party in 2023 and is seeking candidates for the upcoming elections.

To counter growing tensions, Harris has said he intends to pursue a “more planned and sustainable” immigration policy.

But familiarity with Ireland’s history may offer a counterpoint to the Ireland-is-full viewpoint, which has little to do with traditional Irish values regarding hospitality. Rather, such views run counter to Brehon law – the customs and laws that governed Irish society before the coming of the English in the 12th century.

The Brehon laws were a remarkable body of progressive codes that regulated all aspects of society, from beekeeping to homicide. Their exact origins are unknown, but for several centuries they were passed on orally from one generation to the next.

In the seventh century, the laws were written down for the first time, usually by Christian monks – the preservers of much ancient Celtic culture.

Welcome, stranger

Restitution – or restorative justice – rather than punishment lay at the heart of the laws. Consequently, there was no capital punishment or prisons but a scale of penalties or fines for all transgressions, which were proportionate to the severity of the crime and the financial means of the perpetrator.

On the topic of hospitality, the Brehon laws were unequivocal: All households, from royal residences to the poorest of homes, were obliged to provide some measure of “oigidecht” – or hospitality – to travelers, even if they were unknown. In old Irish, the word oigi meant “stranger.”

The hospitality included food and drink, and even entertainment, although the level of each depended on the social status of the household. No monetary payment was expected, although the visitor could offer a poem or a song to his hosts.

Refusal to abide by these rules could result in ostracization or a fine.

The arrival of the English, and with them English common law, eroded the use of the Brehon laws, although they did not completely disappear until the 17th century.

Today, the name survives in U.S. cities through the existence of Brehon law societies, which place human rights at the heart of legal interventions.

Opening arms

It is the spirit of Brehon that I believe best represents Irish society today. Despite the outpouring of xenophobia in November and the emergence of anti-immigration politics, the majority of Irish people are still known for their hospitality to strangers.

It is a well-earned reputation. From the time of the French Huguenots fleeing religious persecution in the 17th century to the Ukrainian refugees in the 2020s, Ireland has offered shelter to those facing discrimination and death elsewhere.

And it has long given a warm welcome to nonwhite visitors, from African-born Olaudah Equiano in the 1790s to American abolitionist Frederick Douglass in the 1840s to U.S. actor and activist Paul Robeson in the 1930s – each of whom regarded their time in Ireland as some of their happiest.

A group of people stand around a statue.
A statue of antislavery campaigner Frederick Douglass is unveiled in Belfast, Northern Ireland.
Liam McBurney/PA Images via Getty Images

Douglass, then a fugitive slave, was struck by “the total absence of all manifestations of prejudice against me, on account of my color”.

It is a reputation that has paid dividends, too. Irish tourism remains robust, generating over 5.3 billion euros in revenue (approximately US$5.7 billion) in 2023, making it the country’s major native industry and the largest regional employer.

An integral part of the promotion of Ireland as a tourist destination is the concept of visiting “Ireland of the Welcomes,” where the time-honored greeting is “Céad Míle Fáilte,” which translates as “a hundred thousand welcomes.”

As Ireland – and its new, young leader – responds to the challenges of becoming a more diverse society, the Brehon laws may serve as a guide for Irish seeking a return to traditional values grounded in hospitality and inclusivity, delivering a new Ireland in which both tourists and immigrants are given “a hundred thousand welcomes.”

The Conversation

Christine Kinealy does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

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Reagan’s Great America Shining On A Hill Twisted Into Trump’s Dark Vision Of Christian Nationalism

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In August 1982, Ronald Reagan’s father-in-law was dying. Nancy Reagan’s beloved dad, Loyal Davis, was an atheist – a troubling fact to the 40th president. So Reagan penned a private, handwritten note in which he recounted how the prayers of colleagues and friends had cured him of a painful stomach ulcer.

Giving hope for what lay beyond, Reagan entreated the older man, “We’ve been promised this is only a part of life and that a greater life, a greater glory awaits us … and all that is required is that you believe and tell God you put yourself in his hands.”

For decades, some of Reagan’s critics have questioned his religiosity, noting he rarely went to church. But the missive to his father-in-law reveals a deep and heartfelt faith. That faith also factored heavily into his political stands and policies, as I discuss in my book “Righting the American Dream: How the Media Mainstreamed Reagan’s Evangelical Vision.”

In recent years, Donald Trump, another former president and the current Republican presidential candidate, has often spoken about his faith, posing for photo ops with right-wing preachers and praising his “favorite book” – the Bible.

The latest such demonstration was a video in which Trump promoted sales of a pricey US$59.99 version of the Bible. “Let’s make America pray again,” he urged viewers. “As we lead into Good Friday and Easter, I encourage you to get a copy of the God Bless the USA Bible.”

While Reagan and Trump – two of the most media-savvy Republican presidents – used religion to advance their political visions, their messages and missions are starkly different.

Why religion plays a part in politics

In my book, I explain that underlying American politics is a religious vision that links citizens to civic values. The most prevalent vision is that God blessed America and tasked its citizens with spreading freedom and democracy. It’s an idea that has undergirded Americans’ patriotism and inspired American domestic and foreign policies for decades.

Reagan telegraphed belief in a God-blessed America by describing the United States as “a shining city on a hill.” Reagan flipped the original meaning of a Biblical phrase from a 17th century Puritan sermon. In Matthew 5:14, Jesus warns that the world will judge whether or not his disciples, a symbolic city on a hill, stick to their ideals. By adding “shining,” Reagan sanctified American exceptionalism and the United States’ role as a global model of freedom.

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Reagan described the U.S. as a ‘shining city on a hill,’ signaling American exceptionalism.
J. David Ake J./AFP via Getty Images

Once elected, Reagan sought practical ways to apply his faith in freedom, which, like many evangelicals, he believed came from God. By cutting taxes, ending industry regulations and privatizing government functions, he hoped to give individuals more economic and political freedom.

Reagan’s love of freedom also fueled his hostility to the Soviet Union. He labeled its communist government “an evil empire,” because it denied its citizens freedom. Casting a geopolitical stance as a cosmic battle between good and evil, Reagan made defeating communism a religious calling.

I argue that Reagan’s evangelical vision was mainstreamed through the media, which reported his interviews and public statements. This vision was not always apparent, but Americans liked his policies even if they missed their religious dimension. In other words, when Reagan proposed allowing the free market to determine the economy, limiting federal power and standing up for democracy worldwide, one didn’t need to be an evangelical to agree.

A new religious vision

Trump saw an opening for a new kind of religiously tinged politics when he ran for president in 2016. But unlike Reagan’s vision of spreading freedom and democracy here and abroad, Trump’s vision sticks closer to home.

I would argue that Trump’s religious vision is rooted in white Christian nationalism, the belief that the white Christians who founded America hoped to spread Protestant beliefs and ideals. According to white Christian nationalists, the founders also wanted to limit the influence of non-Christian immigrants and enslaved Africans.

Likewise, Trump’s rhetoric, mainstreamed by the media, portrays “real” Americans as white Christians. Many of these are men and women fearful that secularists and religious, racial and ethnic minorities want to replace, if not eliminate, them.

By most measures, Trump is not personally religious, although supporters contest that claim. But he has convinced conservative Americans, especially white evangelicals, that he is “God’s instrument on earth.”

When confronted with his financial misconduct, sexual crimes and outrageous lies, backers say that God works through flawed men. And evidence of that work – the U.S. Supreme Court overturning abortion rights, building the border wall and moving the U.S. embassy in Israel from Tel Aviv to Jerusalem – has won him their support.

Trump’s mainstreaming of white Christian nationalism is evident in his latest scheme. The God Bless the USA Bible sports an American flag on its cover. Included with scripture is the Constitution, Bill of Rights, Pledge of Allegiance and the handwritten lyrics to singer Lee Greenwood’s “God Bless the U.S.A.” A portion of the sales will benefit Trump’s organization.

Christianity and nationalism hand in hand

Former President Donald Trump and his faith.

Trump rejects America’s role as the “shining city on a hill” and its mission to spread freedom and democracy. His goal is to restore what he calls the “founding fathers’ vision.” It’s a vision shared by Americans who think the U.S. was founded as a Christian nation, despite proof to the contrary.

Religion can be a force for good or ill. Reagan believed that his religious vision would promote individual freedom and spread democracy worldwide. Americans may agree or disagree on whether he was successful and at what cost.

But Trump’s religious vision – one that hawks Bibles, disparages democracy and mocks governance – isn’t one that Reagan would recognize.

The Conversation

Diane Winston does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

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