On July 1, the U.S. Supreme Court declared that presidents are absolutely immune from criminal prosecution for actions clearly within the core of their Constitutional authority, presumptively immune for official acts within the “outer perimeter” of their authority, and not immune for unofficial acts. Here are some examples to help clarify that murky language: 1) an example of core Constitutional authority would be that the president, as commander-in-chief, is ultimately responsible for military consequences. Therefore, if U.S. soldiers die at war, their president is not legally liable; 2) if a president and his vice president discuss what the latter’s role ought to be in presiding over the official tabulation of electoral votes, that’s within the outer perimeter; and 3) if the president physically assaults an individual with whom he has a personal grudge against, say, a reporter who wrote a scathing article about him, that is not an official act and the president has no immunity.

To date, many Constitutional scholars who follow and analyze such cases agree that, although it does not guarantee Donald Trump absolute immunity from federal charges lodged against him for his role on January 6, it makes it much harder for the prosecution to mount a plausible case. Trump supporters are dismayed that the Supreme Court’s ruling doesn’t end this matter once and for all, and detractors are histrionic that Trump will now wield the power of a king.

Within that case, Trump v. U.S., is a consequence of bad journalism. Three of the nine justices disagreed with the majority’s holding, and Sonya Sotomayor wrote a dissenting opinion in which the other two, Elena Kagan and Ketanji Brown-Jackson joined. The problem was Sotomayor’s false statement that after the 2020 election, Trump telephoned Georgia state officials and asked them to “find me 11,000 votes.” He didn’t say that. If anyone reading this rushes to disprove me by googling “Trump find me 11,000 votes,” one article that may appear in your search would be the granddaddy of ‘em all, straight from the Associated Press (AP) and feeding the rest of the media, whose title reads: “Trump, on Tape, Presses Ga. Official to ‘Find’ Him Votes.” And that is the poisonous tree that bore all the poisonous fruit that followed, all the way up to the Supreme Court.
Importantly, within that very article, the writers provide Trump’s actual words: “All I want to do is this. I just want to find 11,780 votes, which is one more than we have.” Upon reading the entire transcript of the telephone call (which I did and anyone writing about it should), the context is this: Trump goes on various verbal tangents, explaining his reasons for why he won by far more than 11,780 votes, but so as not to obfuscate his bottom line, essentially said let’s not talk about all those, all I need is 11,000 (or so) votes.

In giving Sotomayor the benefit of the doubt, let’s assume she doesn’t know the real story. Further, let’s suppose her law clerks researched the information. If headline after headline copies AP and states that Trump asked Georgia officials to “find him” votes, then it’s easy to conclude it must be true. Political comedian Bill Maher – who’s been increasingly evenhanded in criticizing both the left and the right as of late – also repeats the same fallacy routinely. As do millions of other Americans, no doubt, prompting a handful who’ve approached me to encourage me to write a sequel to my 2020 book ‘Trumped-Up Charges!’, in which I point out media inaccuracies with extensive references that provide ironclad evidence (no sequel is in the plans just yet; I’ll continue to point out media malpractice in this column).

Many critics – particularly Trump-bashers – will dismiss the “I need to find”/”find me” distinction as mere semantics, and a tortured attempt to defend Trump. They mistakenly see the distinction as a way of contending that Trump did nothing wrong. But it’s not the job of a reporter or a historian to determine that; their professional obligations are to provide information accurately and let people make up their own minds. In this case, “find me” votes implies some sort of dirty dealing, along the lines of “find me a new laptop that fell off a truck.” On the other hand, “I need to find” in context means “look, let’s not talk about every single vote that was counted for Biden and disqualify it, I just need to find 11,000 of them.” That’s a big difference.
Nonetheless, critics can make plausible arguments that Trump’s claims of phony votes were unfounded, even that he knew they were false or showed reckless disregard toward the truth when he pressured Georgia state officials, and that as president he should’ve cared about investigating every single vote for its legitimacy, which would include potential fraudulent votes cast not just for Biden, but for him. Fine, as long as the fictitious “find me” phrase is stricken from the historical record.
Shame on the clickbaiters who first constructed the “find me” headline, shame on the scores of other media outlets that ran with it without doublechecking, and shame on a Supreme Court Justice and her clerks, who caused this misinformation to be permanently embedded into the annals of judicial history.

There’s not much of a chance that anyone 100 years from now will read this column. However, U.S. Supreme Court cases are read and analyzed by law school students, law professors, and other scholars, and by the Supreme Court justices themselves, as guidelines for future decrees. Unfortunately, Justice Sotomayor’s carelessness – if not intent – will mislead them.