Ty Cobb, President Trump’s former White House counsel, called Justice Sonia Sotomayor’s dissent from the Supreme Court’s presidential immunity ruling “a bit hysterical.”
“I thought her dissent was a little bit hysterical, no analysis at all, just shouting, no analysis at all, which was disappointing,” Cobb said in an interview with CNN on Monday.
In a 6-3 decision on Monday, the Supreme Court ruled that the president has absolute immunity for acts that fall within the core responsibilities of his office, but is “at least constructively immune” from liability for all other acts of his official duties.
In a forceful 30-page dissent, Justice Sotomayor wrote that the Supreme Court’s decision granting former President Trump immunity from prosecution for official conduct was “[s] She joined fellow liberal Justices Elena Kagan and Ketanji Brown Jackson in arguing that the president should be freed from criminal liability.
The dissent listed a series of hypothetical crimes for which the ruling could absolve the president, including ordering Navy SEAL Team Six to assassinate a political opponent.
Cobb said he was “disappointed” that Justice Elena Kagan did not write a dissent that “focused explicitly on the separation of powers issue,” which he called a “core issue.”
“You can’t write rules that are just focused on Trump without endangering our democracy and removing some of the constraints that have historically served us for 250 years. The separation of powers is a cornerstone of the Constitution,” Cobb said. “While I hope that Trump gets what he deserves for his misdeeds, the reality is that you can’t get the Supreme Court to work toward results.”
“Rulings must be based on principle and precedent, and I was disappointed that Justice Sotomayor never addressed the separation of powers issue. This case was decided based on separation of powers,” he added.
Cobb said he expects the Supreme Court to “draw a line” on official conduct regarding the president.
“It was clear from oral argument and particularly from United States v. Nixon Fitzgerald that the line had to do with official conduct and that’s what they were trying to do,” Cobb said, referring to two Supreme Court cases involving former President Nixon.
Nixon v. Fitzgerald dealt with the president’s immunity from civil liability for actions taken while in office. Meanwhile, United States v. Nixon The question addressed whether the president has executive privilege, which gives him immunity from subpoenas and other civil lawsuits, but the court ruled that he does not.
Cobb said he was a bit “disappointed” and “troubled” by parts of the majority opinion regarding the use of a president’s official acts as evidence in criminal prosecutions against former presidents.
Chief Justice John Roberts, writing the majority opinion, ruled that a former president’s official acts are protected from being introduced as evidence in criminal proceedings against him.
“But they’re always trying to draw a constitutional line here, or a separation of powers line, and the line they’ve drawn is a strict one, but it’s not a line that would dismiss this case,” Cobb said. “Jack Smith can handle the case.”
The verdict was seen as a victory for former President Trump in the federal election subversion criminal case brought by Special Counsel Jack Smith.
The decision will likely delay the trial, first sending the case back to a lower court to determine whether Trump’s actions on January 6, 2021, merit protection from criminal prosecution for decisions he made while in the White House.
