07/14/2024
Published in the Richmond Times Dispatch the other day:
A Marbury v. Madison Moment
The recent Supreme Court ruling involving Mr. Trump, President Biden, and the Justice Department do not reflect a "win" for Mr. Trump or President Biden. Instead the opinion allows judicial review of a President’s actions. This opinion is similar to the decision of the Supreme Court, written by Chief Justice Marshall, in Marbury v. Madison (1803).
Although recognizing official acts and unofficial acts of a President, the Supreme Court does not state that all such acts are immune from prosecution or examination by the Courts. Instead, the Court states that the Court may, upon a proper hearing and evidence, review actions by a President to determine which actions are core actions and immune, which actions are "outer perimeter" and may be immune, and which actions are unofficial and may be not be subject to immunity. "These safeguards, though important, do not alleviate the need for pretrial review…"
"The first step in deciding whether a former President is entitled to immunity from a particular prosecution is to distinguish his official from unofficial actions." The Court may decide which actions of a President are official or unofficial, but definitely, the Court is allowed to make the distinction.
The ruling made by our Supreme Court specifically does not state that evidence of the private records of a President or his advisors are inadmissible (contrary to the inference made in the synopsis of the case), but only states that these records are not admissible during a full trial.
This decision is nothing less than a Marbury v. Madison moment. Chief Justice Roberts and the majority of the Supreme Court have granted the power to review the actions of a President to a Trial Court.
Thomas Shaia
