(L) Justice Katanji Brown Jackson. Photo: Pepperdine University
(R) Justice Sonia Sotomayor. Photo: Constitutional Law Reporter
by Mary Maxwell, LLB, Appellant in Maxwell V Trump
I am presently a candidate in the New Hampshire Republican primary for US Senate. I believe the so-called Insurrection of Jan 6, 2021 was a psy-op, with the violence being carried out by ‘hirees,’ all in aid of collapsing the First Amendment. I believe President Trump lies persistently and that even this is a psy-op, designed to leave us feeling helpless. I am tired of the partisan name-calling and I consider the entire Congress to have failed us in recent years. I hope none of them will be returned to office I January 2027. My lawsuit, Maxwell v Trump, filed on February 20, 2026, seeks a restraining order against a ‘presidential’ war with Iran.
The 2024 Case of US v Trump
The Department of Justice (what a name!), prosecuted Donald Trump after he left office. He was charged with (1) conspiracy to defraud the United States [18 USC 371], (2) conspiracy to obstruct an official proceeding [18 USC1512(k)], (3) obstruction of and attempt to obstruct an official proceeding [18 USC 1512], and (4) conspiracy against rights [USC 241.1]. All of this had to do with the former president’s allegedly pursuing fraudulent claims about the 2020 election, encouraging Vice President Pence to upset the Electoral College ballots, ordering states to “do the right thing, and finally, adding encouragement to the rioters.
It is hard to know if he committed any crimes. The Senate had passed up its chance to “try” him based on the House’s Impeachment of him. (His Party had enough votes to agree on acquittal without even debating the matter for ten minutes). And then when the Biden Administration brought the case as a prosecution, there was no trial because the US Supreme Court made the decision, to be discussed here, that it could not try Trump for crimes if they were done as part of his “core” duty.
Had I been a juror when the aforementioned charges were made, I would have said he was innocent of all of them. Indeed,at the time, 2021, I published my opinion that the rioters’ appearance on Capitol Hill had the immediate and predictable effect of ruining Trump’s chances to correct the “stolen election” – many Congresspersons were all set on Jan 6, 2021, to challenge of the Electoral ballots per the Constitution (Ah! remember the Constitution?) but the ‘emergency’ shut that down. At the time, I also published that Trump’s pressuring Georgia was quite kosher — and I’m a States’ Rights man!
The District Court denied Trump’s defense (about presidential immunity), so it went to Appeals at the DC Circuit, and then to the US Supreme Court which ruled, in 2024:
“We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute.”
I will now quote from Justice Sotomayor’s dissent (which shows how poor a job SCOTUS did) and then from Justice Jackson’s separate dissent (which emphasizes the frightening consequences). Both are of great importance. I am omitting the references but you can easily find them at https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
JUSTICE SOTOMAYOR’s Dissent, Joined by Justices Kagan and Jackson
“Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. Relying on little more than its own misguided wisdom about the need for ‘bold and unhesitating action’ by the President, the Court gives former President Trump all the immunity he asked for and more. Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent.
… II
“The Court now confronts a question it has never had to answer in the Nation’s history: Whether a former President enjoys immunity from federal criminal prosecution. The majority thinks he should, and so it invents an atextual, ahistorical, and unjustifiable immunity that puts the President above the law.
“…the majority’s attempt to apply it to the facts expands the concept of core powers beyond any recognizable bounds. In any event, it is quickly eclipsed by the second move, which is to create expansive immunity for all ‘official act[s].’ Whether described as presumptive or absolute, under the majority’s rule, a President’s use of any official power for any purpose, even the most corrupt, is immune from prosecution. That is just as bad as it sounds, and it is baseless.
“…Under scrutiny, its arguments crumble. To start, the majority’s broad “official acts” immunity is inconsistent with text, history, and established understandings of the President’s role.
…III
“The main takeaway of today’s decision is that all of a President’s official acts, defined without regard to motive or intent, are entitled to immunity that is ‘at least . . . presumptive,’ and quite possibly ‘absolute.’ Whenever the President wields the enormous power of his office, the majority says, the criminal law (at least presumptively) cannot touch him. This official-acts immunity has ‘no firm grounding in constitutional text, history, or precedent.’ Dobbs v. Jackson Women’s Health Organization, (2022). Indeed, those “standard grounds for constitutional decision making,” id all point in the opposite direction. No matter how you look at it, the majority’s official-acts immunity is utterly indefensible.
A
“First, the Framers clearly knew how to provide for immunity from prosecution. They did provide a narrow immunity for legislators in the Speech or Debate Clause…. Second, some state constitutions at the time of the Framing specifically provided ‘express criminal immunities’ to sitting governors.’ If the Framers ‘had wanted to create some constitutional privilege to shield the President . . . from criminal indictment,’ they could have done so…. Third, insofar as the Constitution does speak to this question, it actually contemplates some form of criminal liability for former Presidents. … an official impeached and convicted by the Senate ‘shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment,’ —including conduct such as “Bribery,” which implicates official acts almost by definition.
B
“The historical evidence that exists on Presidential immunity from criminal prosecution cuts decisively against it. For instance, Alexander Hamilton wrote that former Presidents would be ‘liable to prosecution and punishment in the ordinary course of law.’ The Federalist No. 69, …For Hamilton, that was an important distinction between ‘the king of Great Britain,] who was ‘sacred and inviolable,’ and the ‘President of the United States,” who ‘would be amenable to personal punishment.’
“At the Constitutional Convention,…. Delegate Charles Pinckney later explained that ‘[t]he Convention which formed the Constitution well knew’ that ‘no subject had been more abused than privilege,’ and so it ‘determined to . . . limi[t] privilege to what was necessary, and no more.’ ‘No privilege . . . was intended for [the] Executive.’
“Other commentators around the time of the Founding observed that federal officials had no immunity from prosecution…. James Wilson recognized that federal officers who use their official powers to commit crimes ‘may be tried by their country; and if their criminality is established, the law will punish. A grand jury may present, a petty jury may convict, and the judges will pronounce the punishment.’
“The majority fails to recognize or grapple with the lack of historical evidence for its new immunity.
“ ‘Long settled and established practice’ may have ‘great weight in a proper in- terpretation of constitutional provisions’ (quoting The Pocket Veto Case, 1929) .
“After the Watergate tapes revealed President Nixon’s misuse of official power to obstruct the Federal Bureau of Investigation’s investigation of the Watergate burglary, President Ford pardoned Nixon. Both Ford’s pardon and Nixon’s acceptance of the pardon necessarily “rested on the understanding that the former President faced potential criminal liability.”
“Subsequent special counsel and independent counsel investigations have also operated on the assumption that the Government can criminally prosecute former Presidents for their official acts, where they violate the criminal law. See, e.g., L. Walsh, Final Report of the Independent Counsel for Iran/Contra Matters: Investigations and Prosecutions (1993).
“Indeed, Trump’s own lawyers during his second impeachment trial assured Senators that declining to impeach Trump for his conduct related to January 6 would not leave him ‘in any way above the law.’ They insisted that a former Pres- ident ‘is like any other citizen and can be tried in a court of law.’
IV. “Today’s Court, however, has replaced a presumption of equality before the law with a presumption that the President is above the law for all of his official acts.
“Quick on the heels of announcing this astonishingly broad official-acts immunity, the majority assures us that a former President can still be prosecuted for ‘unofficial acts.’ Of course he can. No one has questioned the ability to prosecute a former President for unofficial (otherwise known as private) acts…. This unremarkable proposition is no real limit on today’s decision. It does not hide the majority’s embrace of the most far-reaching view of Presidential immunity on offer.
“In fact, the majority’s dividing line between “official” and “unofficial” conduct narrows the conduct considered “unofficial” almost to a nullity. It says that whenever the President acts in a way that is ‘not manifestly or palpably beyond [his] authority,’ he is taking official action. [I believe that making war on Iran was manifestly beyond the president’s power — MM].
B
“So how does the majority get to its rule? With text, history, and established understanding all weighing against it, the majority claims just one arrow in its quiver: the balancing test in Nixon v. Fitzgerald, (1983). Yet even that test cuts against it. The majority concludes that official-acts immunity ‘is required to safeguard the inde- pendence and effective functioning of the Executive Branch.’ [Oh my.]
Compare civil actions: “In Fitzgerald, plaintiff A. Ernest Fitzgerald sued then- former President Nixon for money damages. He claimed that, while in office, Nixon had been involved in unlawfully firing him from his government job. The question for the Court was whether a former President had immunity from such a civil suit. The Court explained that it was ‘settled law that the separation-of- powers doctrine does not bar every exercise of jurisdiction over the President …a court ‘must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch.’…
In light of [various] considerable protections, the majority’s fear that ‘bare allegations of malice,’ … would expose former Presidents to trial and conviction is unfounded. Bare allegations of malice would not make it out of the starting gate. …
“I am deeply troubled by the idea, inherent in the majority’s opinion, that our Nation loses something valuable when the President is forced to operate within the confines of federal criminal law.
V … VI
“…Not content simply to invent an expansive criminal immunity for former Presidents, the majority goes a dramatic and unprecedented step further. It says that acts for which the President is immune must be redacted from the narrative of even wholly private crimes committed while in office. They must play no role in proceedings regarding private criminal acts. …
VII
Today’s decision to grant former Presidents immunity for their official acts is deeply wrong. … The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.
With fear for our democracy, I dissent.
JUSTICE JACKSON, dissenting.
“I also address what that paradigm shift means for our Nation moving forward.
I…
“To say that someone is immune from criminal prosecution is to say that, like a King, he ‘is not under the coercive power of the law,’ which ‘will not suppose him capable of committing a folly, much less a crime.’ 4 Blackstone *33. Thus, being immune is not like having a defense under the law. Rather, it means that the law does not apply to the immunized person in the first place. Conferring immunity therefore ‘create[s] a privileged class free from liability for wrongs inflicted or injuries threatened.’ Hopkins…
“It is a core tenet of our democracy that the People are the sovereign, and the Rule of Law is our first and final security. ‘[F]rom their own experience and their deep reading in history, the Founders knew that Law alone saves a society from being rent by internecine strife or ruled by mere brute power however disguised.’ United States v. Mine Workers, (1947) (Frankfurter, J., concurring in judgment).
“We have long lived with the collective understanding that ‘[d]ecency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen,’ for ‘[i]n a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously.’ Olmstead v. United States, (1928) (Brandeis, J., dissenting).
JUSTICE SOTOMAYOR has already warned of the dire consequences that are likely to follow from the majority’s decision in this case. ..
Here, I will highlight just two observations about the results that follow from this paradigm shift. First, by changing the accountability paradigm in this fashion, the Court has unilaterally altered the balance of power between the three coordinate branches of our Government as it relates to the Rule of Law, aggrandizing power in the Judiciary and the Executive, to the detriment of Congress. Second, the majority’s new Presidential accountability model undermines the constraints of the law as a deterrent for future Presidents who might otherwise abuse their power, to the detriment of us all.
“From this day forward, Presidents of tomorrow will be free to exercise the Com- mander-in-Chief powers, the foreign-affairs powers, and all the vast law enforcement powers enshrined in Article II however they please—including in ways that Congress has deemed criminal and that have potentially grave consequences for the rights and liberties of Americans.
IV
“[Because] …the risks (and power) the Court has now assumed are intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms, I dissent.
Conclusion [by MM] — The 2024 ruling in US V Trump was a big fat mistake. It cannot be allowed to stand. Like the 2010 ruling in Citizens United v Federal Elections Commission, it truly destroys the Constitution. That case changed the limits on spending by Pac’s — Political Action Committee’s — to an unlimited amount. (This year alone, 2026, I have frequently read of corporations donating more than ten million dollars to a Congressional candidate.)
An easy method for changing a US Supreme Court rule is for the justices themselves to decide — sua sponte — to alter the judgment. Or, in a subsequent case, they can comment critically on their earlier choice of definition of “core powers.”
Trust me. We citizen cannot leave this precedent in place. It is very, very dangerous. I must also add that it is a real possibility that the ruling did not come from our Supreme court but was “sent down to them from above.”
I am not referring to the celestial sphere.