- Mark Meadows asked the Supreme Court to recognize immunity for the president’s subordinates.
- He is criminally charged alongside Trump for a plot to erase Biden’s election victory in Georgia.
- One of Trump’s appointees to the Supreme Court appears to draw the opposite conclusion.
Before the Supreme Court heard oral arguments in former President Donald Trump’s immunity case, Mark Meadows tried to get his foot in the door.
The high court has agreed to decide whether former presidents can enjoy legal immunity from criminal prosecution for actions taken during their presidency.
Trump hoped a ruling would defeat the indictment against him for his attempts to overturn the 2020 presidential election – an outcome that now appears unlikely, although the trial will likely be postponed until after the presidential election of 2024.
Meadows, a former Republican congressman, served as Trump’s chief of staff during the final year of his White House administration. He was criminally charged alongside Trump in a separate case, brought by the Fulton County district attorney’s office in Atlanta, for a plot to erase now-President Joe Biden’s election victory in Georgia.
The justices denied Meadows’ attempts to move his criminal case to federal court, which could provide more favorable legal ground. His lawyers relied on the Constitution’s Supremacy Clause, which protects the federal government from interference by state officials.
Despite the losses suffered by the lower courts, Meadows nevertheless asked the Supreme Court to recognize that the president’s subordinates should have immunity from criminal prosecution – both at the federal and state level – because they were simply doing their job following the president’s instructions.
His lawyers said the court should recognize Meadows’ immunity even if Trump himself doesn’t have immunity.
“If the Court addresses or resolves the question of whether a President can act in an unofficial capacity while in office and thereby lose the protection of presidential immunity, the Court should make clear that its decision does not apply to the conduct of junior federal officials who, “like Meadows, generally assisted the former President in the course of their federal duties,” his lawyers wrote in an amicus brief to the Supreme Court.
A Trump appointee had the opposite approach
During Thursday’s hearings, the Supreme Court did not directly address the issue.
But Justice Neil Gorsuch – a Trump appointee to the Court – appears to draw the opposite conclusion.
In a series of questions to Trump’s lawyer, John Sauer, Gorsuch indicated that he believed subordinates responsibility was a useful deterrent that would prevent presidents from committing crimes.
“If the president gives an illegal order, call in the troops, all the examples we’ve heard, all his subordinates face criminal prosecution, right?” Gorsuch asked Sauer.
Sauer, citing historic arguments from the Constitutional Convention, agreed that the president’s “co-agitators” “could be prosecuted” as long as their conduct met a criminal statute.
“Oh, we have a lot of statutes,” Gorsuch replied. “The criminal law books are full. But, I mean, would you agree, is this check available?”
As the idea goes: because the president’s employees don’t want to go to jail, it is difficult for presidents to commit crimes, because their subordinates would refuse to carry out their illegal orders.
“The idea is, in general, that if a president commits something criminal, he does it in some sort of principal-agent relationship, he doesn’t commit the act himself,” Anthony Michael Kreis , professor of constitutional law at Georgia State. University, told Business Insider. “And so probably more often than not, there will be some sort of conspiracy-based crime.”
George Terwilliger, a lawyer representing Meadows, told Business Insider that Gorsuch was talking about “orders from the president that could be seen as illegal on their face,” which he said was not relevant to the amicus brief.
He highlighted another exchange during the hearing between Justice Department lawyer Michael Dreeben and another Trump appointee, Judge Amy Coney Barrett. Barrett said a potential form of immunity could protect former presidents from prosecution rather than giving too much discretion to the Justice Department.
“A lot of the protections that you’re talking about are internal protections that the federal government has, protections within the Department of Justice, that are obviously not applicable in the many, many, many states and local jurisdictions across the country “Barrett said.
Donald Trump and Neil Gorsuch. Carolyn Kaster/AP
The issue was raised several times during Thursday’s hearing — all in cases where the justices appeared unsympathetic to the idea that government employees would benefit from immunity for breaking the law.
They discussed a hypothetical scenario in which a president ordered the military to assassinate a rival politician. Sauer said the president could be shielded from criminal prosecution in such cases — a scenario the judges seemed uncomfortable with.
Justice Samuel Alito, another conservative appointee, said SEAL Team Six would be “bound” by military rules “not to obey unlawful orders.”
“One could argue that it’s not plausibly legal to command SEAL Team Six — and I don’t want to slander SEAL Team Six because, seriously, they’re honorable,” Alito said.
Fulton County prosecutors have alleged that Trump, Meadows and more than a dozen other political allies played roles in a wide-ranging conspiracy to convince Georgia state officials to grant Trump a fake victory in the 2020 elections.
The indictment specifically alleges that Meadows met with Georgia state and Republican Party officials as well as Trump campaign lawyers as he planned to stop the certification of Biden’s victory.
One day, Meadows even traveled to Georgia to observe an audit while the process was closed to the public, according to the indictment. A few days later, he texted an election official offering to help the Trump campaign, according to the indictment.
In the U.S. Constitution, the president has no role in certifying electoral votes. And by appearing to act on behalf of the Trump campaign — rather than the White House — Meadows appeared to be acting in a private capacity rather than in his role as chief of staff, Kreis said.
Kreis told Business Insider that Meadows’ request for “trickle down immunity” was inconsistent with precedent and with previous cases in which employees of the administrations of Richard Nixon and Ronald Reagan were criminally convicted for actions that they committed during their mandate.
“I think as a society in general we also don’t find it consistent with the rule of law to just say, ‘I was just following orders, I didn’t know,'” he said. declared. “It’s just not consistent, again, with the rule of law, but it’s also not consistent with past practices in history.”
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