So Do Judges Get to Read the President’s Mind or Not?

By Andrew C. McCarthy

Saturday, May 31, 2025

 

Is it the place of the judiciary to inquire into the president’s motives?

 

I could ask, Do the judges get to read the president’s mind? But that would imply that there may be something subtle or veiled at work. Not so. President Trump is not just an open book. He’s a 24/7 in-your-face, endless blast of deafening-decibel proclamation. All him, him, him, telling us all about what he does, what he intends to do, and exactly why he’s doing it. Which is not to say it’s consistent or coherent: Trump, for example, has wanted you to know, over the past nine years, that no one was tougher on Putin than he, that they have always had a great relationship, that Putin is a brilliant leader who cares deeply about Russia, and that he has no idea what the hell happened to Putin, who is now — only now! — maniacally killing people. Which is not to say we don’t kill people, too.

 

Got it? Me neither . . . except to observe the facts of life. Just because a solipsist can’t stop telling you what he thinks doesn’t necessarily mean he knows what he thinks. Plus, impulsive people are usually carted along by circumstances rather than driving them, so we shouldn’t be surprised when they veer from one idea to its antithesis as the wind shifts. You know, China and other cheating countries are paying all the billions in tariffs . . . but Amazon better not dare post at checkout how much prices are rising for the consumer who actually pays the tariffs . . . which shouldn’t happen because greedy companies should eat the cost of the tariffs . . . that, you know, are actually paid by other countries that are pouring “many Trillions of Dollars” into our country. Or something.

 

You get the idea.

 

That the president’s thoughts are not always linear is, again, no impediment to his sharing them, regardless of whether you’re weary of hearing them. He will always tell you what he believes. That’s complicated with a character of this type: Sometimes what he says is what he knee-jerk believes (e.g., Zelensky is almost as nauseating as Adam Schiff) and sometimes he says what he has decided to believe (the 2020 election was stolen by fraudulent voting, or at least so rigged against him that it might as well have been fraudulent voting, especially given the failure of fraudulent voting proof to materialize). And what Trump believes about something at a planning stage (e.g., “Liberation Day” or “15 Days to Stop the Spread”) is different from what he decides to believe once the plan flops (some person, institution, or microbe has sabotaged him).

 

Dealing with such contortions can be tricky. When Biden DOJ special counsel Jack Smith brought his January 6 indictment against Trump, there were four counts, but it all came down to one thing: Did Trump know he had lost the election? That is, did he subjectively believe that he had lost, which would make the contrary things he said knowingly untrue — e.g., that 5,000 dead people voted in Georgia (the true number was four)? Or was he convinced, however irrationally, that he had won, which would mean — allowing for some jejune political hyperbole — that he spoke out of sincere belief that the evidence would inevitably bear him out?

 

I don’t think this is an idle inquiry. Cases that come down to state of mind are interesting. With a Washington, D.C., jury pool and the Obama-appointed Judge Tanya Chutkan, whose contempt for the defendant was plainly evident, I imagine Trump would have been convicted after about ten minutes of deliberation. But in a more neutral forum, who knows?

 

Of course, the trial never happened. It’s important to remember why, particularly with the White House and its political messaging shop (the Justice Department) working feverishly to rewrite history.

 

President Trump was not convicted for two reasons. First, the Supreme Court did not rule on his case (Trump v. United States) until July 1, 2024, eight months after Judge Chutkan denied his immunity motion. (I do not mean that as a knock on the Supreme Court — it had to wait on the first appeal to the D.C. Circuit, and eight months is lightning speed compared with the usual pace of appellate litigation.) Second, the sweep of the immunity granted by the majority necessitated an overhaul — not a dismissal, an overhaul — of Smith’s case. The indictment was not thrown out. Smith just ran out of time: Trump was elected, and the prosecutor dropped the case in deference to long-standing DOJ guidance that a sitting president may not be criminally prosecuted. The president was not found not guilty, much less exonerated by the legal system. It’s fair to say, though, that a plurality of the electorate gave him a pass — perhaps less out of sympathy for Trump than from disdain for the Democrats’ lawfare mauling of a political opponent (something the president would do well to bear in mind . . . but won’t).

 

Now, the Supreme Court reasoned that presidents have immunity for their official acts. The scope of the immunity depends on whether the acts reflect “core” executive power (for which there is absolute immunity) or presidential functions more attenuated from the heartland of Article II (for which there is presumptive immunity). Presidents have no immunity for unofficial acts — private conduct.

 

In sorting out the official from the unofficial, the most important consideration is authority: Is the action within the broad ambit of executive power? But here’s the significant part for present purposes: In assessing whether a president has authority to take an action, a court is forbidden to inquire into the president’s motives. To engage in such scrutiny, the majority concluded, “would risk exposing even the most obvious instances of official conduct to judicial examination . . . thereby intruding on the Article II interests that immunity seeks to protect.” This would “seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch.” It might paralyze the president “in exercising the functions of his office” if he were “under an apprehension that the motives that control his conduct may . . . become the subject of inquiry.”

 

There was no caveat in the Court’s opinion along the lines of: The judiciary may, however, take motive into account if the president insists on announcing his motives to the world. Just the opposite. The sole part of Smith’s indictment that the Court did strike out was the allegation that Trump schemed to use the Justice Department to induce states won by Biden, but with majority-Republican legislatures, to reverse the election results. The scheme was abandoned, but the evidence that Trump improperly exploited his control over the DOJ for his personal political purposes was quite strong. That didn’t matter, the justices concluded: Under the Constitution, the president runs the Justice Department; under statutory law, the Justice Department has jurisdiction to investigate the conduct of state-run elections (in fact, Smith charged Trump with a civil rights felony for seeking to nullify ballots cast by state voters); courts were therefore barred from examining why Trump gave the DOJ instructions in this regard. Even stipulating that his motives were patently corrupt, the judiciary had to butt out.

 

Suffice it to say that Trump has picked up this ball and run as far as he can with it.

 

The president is using power he undeniably has as chief executive to either put law firms out of business or extort them into contributing hundreds of millions of dollars in free legal services to his favored causes — denying contracts, pressuring third parties to cancel contracts, revoking security clearances, denying access to federal buildings, siccing the DOJ, EEOC, and other agencies on them, and so on. The administration’s jihad against Harvard is similar: pausing or canceling billions in research grants, and cutting the university off from future grants; revoking the authority to enroll foreign students (who constitute more than a quarter of the student body); expansive discovery demands regarding the activities of foreign students (under circumstances in which the administration is systematically revoking student visas); launching law enforcement and administrative investigations of alleged racial discrimination; and threatening to have the IRS terminate the university’s tax-exempt status (with an eye on Harvard’s estimated $53 billion endowment). And there are now reports that the luxury plane gifted to the president was not mere grift but the result of a demand initiated by the president under the guise of his authority to conduct foreign policy.

 

Not much sleight of hand here. As usual, the president has been quite open about his motivations. The executive orders he issued regarding the law firms are jaw-droppingly frank that he is punishing them because they used to employ lawyers he despises — lawyers who investigated him — and because they have represented his political rivals and causes he disfavors (not least, opposition to his efforts to undo his 2020 election loss). Regarding the law firms that succumbed to his pressure by settling rather than suing — firms that, in the aggregate, have  coughed up around $1 billion in free legal services — Trump observed last month, “I agree, they’ve done nothing wrong. But what the hell, they give me a lot of money considering they’ve done nothing wrong.” In a recent social media post, Trump branded Harvard “an Anti-Semitic, Far Left Institution . . . with students being accepted from all over the World that want to rip our Country apart.” On the “palace in the sky” from our jihadist friends in Doha, the president chirps that he “got a beautiful big magnificent free airplane for the United States Air Force,” which he plans to use as Air Force One. “Very proud of that.”

 

These are striking abuses of power. It shouldn’t be hard to say that even if one believes, as I do, that Harvard deserves to be investigated for civil rights transgressions, that the tax treatment of its endowment ought to be reexamined, that the law firms in question work for some unsavory people and causes, and that the legal profession stands silent when progressives attack attorneys who represent Trump allies and conservative causes.

 

Here’s the development worth watching: Suddenly, judges appointed by presidents of both parties have decided that, when it comes to the president’s motivations, they don’t need to look the other way, after all.

 

In the last month, federal judges have invalidated the president’s executive orders against three different law firms (see here, here, and here, along with my column on the first decision). In some particulars, the orders cite actions that are unlawful because they are ultra vires — outside the ambit of executive authority. But in the main, the judges have grappled with enforcement actions that were squarely within executive power but that the courts found to be unlawful because the president was motivated to retaliate against perceived political enemies and/or to suppress viewpoints with which he disagrees.

 

Let’s concede that this president broadcasts his motivations to the point that, even with blindfolds and earplugs (which I recommend), you couldn’t fail to notice them. Still, in light of the immunity decision, is this judicial examination of presidential motivation permissible? I think so.

 

All three judges — Obama appointee Beryl Howell and Bush-43 appointees John Bates and Richard Leon, each of the federal district court in Washington, D.C. — relied on a Supreme Court decision from the same term as the immunity ruling, namely, National Rifle Association v. Vullo (2024).

 

In Vullo, under the administration of former Governor Andrew Cuomo, New York’s state insurance regulator sought to punish the NRA and suppress its pro–Second Amendment advocacy by pressuring insurance companies to drop policies that the NRA offered to its members as benefits. Significantly, the insurance companies had committed technical violations of state law (in connection with various parties, not just the NRA). This means the state had proper grounds to investigate and threaten enforcement action against them. But, in its unanimous decision, the Supreme Court looked beyond the state’s ostensibly legitimate authority and homed in on its insidious motivation: The regulator made it clear to the companies that if they played ball by helping it punish its political enemy, the NRA, the state would look the other way regarding the companies’ infractions.

 

To put a finer point on it, the Court held that even if the government had authority to take punitive action, it was unconstitutional to exercise that authority for purposes of retribution or to suppress political views to which the government objected.

 

Obviously, the contexts of the relevant cases are different. The immunity case involved Trump’s actions as president that allegedly violated the criminal law. The law firm cases involve Trump’s actions as president that allegedly violated the constitutional rights of the plaintiffs. Still, in the former, the Court was emphatic that it had no business inquiring into whether the president’s motivations were corrupt; in the latter, relying on the Court’s Vullo decision, the district court judges found that the president’s corrupt motivations were the decisive factor.

 

That’s probably as it should be. Even if it is now cowed into inaction, Congress, not criminal prosecution, is our constitutional system’s check on corrupt presidential conduct. To be sure, though this may be news to the Trump DOJ, the Court did not repudiate Smith’s prosecution; the indictment was narrowed, not dismissed. And notably, Justice Amy Coney Barrett, though in the 6–3 immunity majority, expressed a more narrow view of immunity than did her colleagues. (Justice Barrett has a broader conception of what constitutes unofficial conduct and a more permissive take on the use of official presidential acts as evidence to prove crimes based principally on unofficial conduct.) Nevertheless, because they are at least presumptively immune, arguably official acts are always going to be tough to prove as crimes. By contrast, there are no limits on Congress’s citing of them as a basis for checking executive abuse of power — the arsenal for this includes oversight hearings, slashing funding, denying appointments, declining legislative authority, all the way up to the nuclear option of impeachment and removal.

 

That said, if the president has construed the immunity ruling to mean that he’s insulated from any judicial review of his motivations, he is mistaken. In the last four weeks, three lower-court judges have told him so. Eventually, just as President Trump insists on broadcasting his every design, the Supreme Court will have to be clear on the authority of courts to weigh those designs in judging his actions.