Ann Arbor (Informed Comment) – I may not have a law degree, but I do know a great deal from personal experience (as a pioneering blogger) and wide reading about the internet. So the passage about presidential tweets in the Supreme Court’s decision on presidential immunity in Trump v. United States caught my eye.
The court depended on Nixon v. Fitzgerald (1982) in upholding absolute presidential immunity from civil suits for actions taken as part of the fulfillment of the core duties of the presidency. That ruling noted, “The President’s absolute immunity extends to all acts within the ‘outer perimeter’ of his duties of office.” The case arose because Ernie Fitzgerald was an Air Force contractor who in 1968 and 1969 testified before Congress on cost overruns. In short, he was a whistleblower. Nixon had him fired for “disloyalty,” which was surely improper. But SCOTUS ruled that Nixon could not be sued civilly for the firing because it came under the heading of his official duties, though perhaps it was located in that exotic and mysterious penumbra of presidential duties it described as the “outer perimeter.” Dangerously, it did not specify the outer limits of the outer perimeter, giving Burger’s distant successor John Roberts an opening to scoop everything up into it. Fitzgerald did not hold that presidents had immunity from criminal prosecution. The then chief justice was a Nixon appointee, Warren E. Burger.
The ruling did not give Trump absolute immunity from prosecution for his attempted overthrow of the US government on January 6, 2021, but it did put certain actions and conversations off the table for prosecution. Thus, his attempt to coerce his acting attorney general, and any conversations he had with the AG attempting to browbeat him into overturning the election, and his summary firing of the AG for not going along, were declared within the scope of Trump’s immunity. Wait — what?
That’s bad.
So now we come to tweets. Yes, presidential tweets. For younger readers I should explain that Elon Musk’s “X,” which is sort of a stationary TikTok for decrepit people, used in yet more ancient times to be called “Twitter,” and posting (i.e. writing short public messages) used on that platform to be referred to as “tweeting.”
Roberts writes, “The indictment also contains various allegations regarding Trump’s conduct in connection with the events of January 6 itself. The alleged conduct largely consists of Trump’s communications in the form of Tweets and a public address.”
OK, that grabbed my attention. What about it?
“The President possesses ‘extraordinary power to speak to his fellow citizens and on their behalf.’ Trump v. Hawaii, 585 U. S. 667, 701. So most of a President’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities.”
There is Burger’s amorphous “outer perimeter!” It extends to tweets, the Roberts court maintains! I mean, have they read that maniac’s tweets when he was in office?
Then they back off at least a little bit: “There may, however, be contexts in which the President speaks in an unofficial capacity —- perhaps as a candidate for office or party leader. To the extent that may be the case, objective analysis of ‘content, form, and context’ will necessarily in- form the inquiry. Snyder v. Phelps, 562 U. S. 443, 453.”
So it all comes down to whether a tweet was sent out by Trump in his capacity as head of the Republican Party or whether it was a presidential communication.
Roberts concludes, “Whether the communications alleged in the indictment involve official conduct may depend on the content and context of each. This necessarily factbound analysis is best performed initially by the District Court. The Court therefore remands to the District Court to determine in the first in- stance whether this alleged conduct is official or unofficial.”
Trump tweeted numerous times on January 6, and his ravings are preserved here.
Let me just speculate that this one, at 5 am on January 6, was unofficial: “Get smart Republicans. FIGHT!” Just personally, I also think it is seditious, since the election was over and I can’t imagine what it would mean to “fight” two weeks before the inauguration except hand to hand in the street.
At 6 am he was peddling his ridiculous theory that Mike Pence could overturn Biden’s election: “If Vice President @Mike_Pence comes through for us, we will win the Presidency. Many States want to decertify the mistake they made in certifying incorrect & even fraudulent numbers in a process NOT approved by their State Legislatures (which it must be). Mike can send it back!”
Again, that seems seditious and also not an official communication of the presidency since it is about “winning” the presidency (which he had long since lost) and so must be about his leadership of the Republican Party.
And more sedition even after the Capitol was invaded by vindictive mobs from whom Josh Hawley ran a 2 minute mile:
“Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”
I’d bet you that the the far right fascists on the court might even find that one (sung to the tune of “hang Mike Pence”) to be in the outer perimeter of the presidency.
Which just underlines the degree to which this court has plunged the country into the Outer Limits or the Twilight Zone of dark horror.
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