By Scott Graber
It is Wednesday, early, and I have the Wall Street Journal.
This morning, the Journal tells us that a three-judge panel at the D.C. Court of Appeals dismissed Donald Trump’s arguments that his “efforts during the final months of his presidency to undue his loss, including by promoting false claims of voter fraud, fell within the ambit of his official duties …”
As I read the piece I noticed that the three judges were all women — one appointed by President George H.W. Bush; the other two appointed by President Biden. Of the three names, Judge Karen Henderson and Judge Michelle Childs seemed somehow familiar, ringing a bell in my creaking memory.
Before I could focus on that bell, my mind took me to a classroom in Capers Hall at The Citadel. It was 1966.
When I took Constitutional Law, Marbury v. Madison was where Professor Larry Moreland began his course. The words and wisdom of Marbury are also parsed by every law student who matriculates at every law school in the land.
The fundamental argument made by Donald Trump’s lawyers was that the separation of powers doctrine “immunizes Trump from criminal prosecution” and in the words of Marbury, “can never be examinable by the courts.”
But one can’t stop here.
Every law student knows that Marbury v Madison distinguished between discretionary and ministerial acts and yes, Marbury held that when the President is acting in his “discretionary” mode his acts are not “examinable.” But when an officer acts in his ministerial capacity — where he is engaged in a specific duty assigned by law — “he is liable to indictment.”
Quoting Justice Marshall, “When the legislature proceeds to impose of the officer other duties; when he is directed to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others.”
Under the current situation, a President who (allegedly) sports away the votes of citizens who had lawfully cast votes in Georgia, Arizona and Wisconsin is acting in a “ministerial’’ realm and is “compelled to do his duty, and if he refuses, is liable to indictment.”
The Court of Appeals then moved to Youngstown Sheet & Tube v. Sawyer where Harry Truman seized control of the steel mills in 1952. In that case the Supreme Court found that the President exceeded his constitutional authority.
“President Truman could lawfully act only to execute Congress’s laws, or to carry out his constitutional duties as Executive, and he lacked authority from either source to seize the steel mills.”
Further quoting Youngstown, “No man in this county is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and bound to follow it …”
This Appeals Court wrote, “Here, former President Trump’s actions allegedly violated generally applicable criminal laws, meaning those acts were not properly within the scope of his lawful discretion; accordingly, Marbury and its progeny provided him no structural immunity from charges in the indictment.”
Years ago — perhaps 40 years ago — I met a young, attractive lawyer who was then working for South Carolina Attorney General Dan McLeod. It was, I think, a party, and we were standing in a kitchen debating some arcane point of law. I can’t remember much about that conversation other than her enthusiasm.
Later on — maybe 30 years later — I was in the midst of a difficult trial in Jasper County — and things were not going well for me. Notwithstanding those difficulties I was struck by the decisiveness of the young female judge.
As I re-read the 57 page-long opinion of the D.C. Court of Appeals this morning it occurs to me that Judge Karen Henderson was the same young women with whom I debated in that Columbia kitchen. And that Judge Michelle Childs was the same judge I argued before in that Jasper County courtroom.
Many Constitutional scholars believe that this Opinion is one of those foundational opinions that will become part of the legal canon studied by future law students. Henceforth, the reasoning of United States of America v. Donald Trump (23-3228) will now become, along with Youngstown Tubing, progeny of Marbury
That enduring, consequential reasoning was fashioned, in part, by two South Carolina women.
Scott Graber is a lawyer, novelist, veteran columnist and longtime resident of Port Royal. He can be reached at cscottgraber@gmail.com.
