The extreme right wing majority on the United States Supreme Court has once again undermined the crucial principle that no one is above the law in America by ruling, indefensibly, that presidents enjoy absolute immunity for official acts.
The court’s one paragraph synopsis of the decision in Trump v. United States reads:
The nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority; he is also entitled to at least presumptive immunity from prosecution for all his official acts; there is no immunity for unofficial acts.
The Court’s decision does not mean that Trump is off the hook for his insurrectionist conduct before and on January 6th, 2021, which Special Counsel Jack Smith is trying to hold him accountable for. But it is a blow to American democracy.
The Court’s six right wing justices made up the majority in the case. Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson dissented.
Chief Justice John Roberts wrote the majority opinion.
“This case is the first criminal prosecution in our Nation’s history of a former President for actions taken during his Presidency,” the decision syllabus reads.
“Determining whether and under what circumstances such a prosecution may proceed requires careful assessment of the scope of Presidential power under the Constitution. The nature of that 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. As for his remaining official actions, he is entitled to at least presumptive immunity.”
The Court also held: “As for a President’s unofficial acts, there is no immunity. Although Presidential immunity is required for official actions to ensure that the President’s decisionmaking is not distorted by the threat of future litigation stemming from those actions, that concern does not support immunity for unofficial conduct.”
“Distinguishing the President’s official actions from his unofficial ones can be difficult,” Roberts admitted in his majority opinion. While deeming Trump’s interactions with ex-Attorney General Bill Barr to be “official acts,” Roberts and his colleagues decided to punt on the question of whether other charges brought by Jack Smith concerned official or unofficial acts to the District Court handling the case.
“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,” Justice Sonia Sotomayor wrote in dissent, joined by Kagan and Brown Jackson.
“The majority makes three moves that, in effect, completely insulate Presidents from criminal liability. First, the majority creates absolute immunity for the President’s
exercise of ‘core constitutional powers.’ This holding is unnecessary on the facts of the indictment, and 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.”
“Finally, the majority declares that evidence concerning acts for which the President is immune can play no role in any criminal prosecution against him. That holding, which will prevent the Government from using a President’s official acts to prove knowledge or intent in prosecuting private offenses, is nonsensical.”
After a discussion of what’s in the historical record, Sotomayor then added: “In sum, the majority today endorses an expansive vision of Presidential immunity that was never recognized by the Founders, any sitting President, the Executive Branch, or even President Trump’s lawyers, until now. Settled understandings of the Constitution are of little use to the majority in this case, and so it ignores them.”
Perhaps the most blistering part of Sotomayor’s dissent came near the end.
“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.”
“Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today. Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.”
She concluded:
“Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop.”
“With fear for our democracy, I dissent.”
As is custom, Chief Justice Roberts had access to Sotomayor’s dissent prior to finishing his majority opinion, and he took pains to try to rebut some of the points she made — though not successfully, in NPI’s view.
The dissents “strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today — conclude that immunity extends to official discussions between the President and his Attorney General, and then remand to the lower courts to determine ‘in the first instance’ whether and to what extent Trump’s remaining alleged conduct is entitled to immunity,” Roberts wrote. (Wholly disproportionate!?)
Roberts went on to sneer: “The dissents’ positions in the end boil down to ignoring the Constitution’s separation of powers and the Court’s precedent and instead fear mongering on the basis of extreme hypotheticals about a future where the President ‘feels empowered to violate federal criminal law.’ ”
Hardly. Justice Sotomayor’s dissent addressed both precedent and the Constitution’s separation of powers. Is Roberts hoping people will stop reading the opinions after getting through his? And why, given his own admission that we are in unprecedented waters with this case, is he knocking Sotomayor for “fear mongering”? In our last presidential election, we not only had a losing incumbent candidate fail to concede, but try to disrupt the peaceful transfer of power for the first time in our Nation’s history.
That same candidate is now running again, is on the verge of being renominated, and is promising that if he gets power again, he will use it to go after his political opponents.
Justice Sotomayor is right to be concerned about the future and wholly justified in imagining the destructive consequences of the majority’s decision.
Roberts and his colleagues seem not to care what Donald Trump or any other future president might do with the immunity their decision confers. Instead, they’re concerned about former presidents being prosecuted by their successors’ administrations.
To quote Roberts:
“The dissents overlook the more likely prospect of an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next.”
How is that not “fear mongering” or an “extreme hypothetical”?
It must be noted that if we lose our democracy and America ceases having free and fair elections, Roberts’ supposed hypothetical is unlikely to be relevant. In the event we slide into autocracy, there may not be any transfers of power during the president’s life. There won’t be a successive President prosecuting his predecessors.
Consider the current state of affairs in the Russian Federation. Vladimir Putin is supposedly the country’s democratically elected chief executive, but everyone who isn’t aligned with the Kremlin knows the country’s elections are rigged to ensure that Putin remains in power. There have not been any serious challenges to his rule in years. Putin has made sure of that, even having his political opponents murdered.
Donald Trump admires Putin and wants what Putin has.
It is in that context that Roberts and his colleagues delivered this verdict.
It won’t make Jack Smith’s case go away, which is what Donald Trump would like, but it is probably more of a victory than Trump’s lawyers were expecting to get.
“This decision will give Donald Trump cover to do exactly what he’s been saying he wants to for months: enact revenge and retribution against his enemies,” said Biden-Harris Principal Deputy Campaign Manager Quentin Fulks.
“According to this decision, if it’s an official act to ask his justice department to jail his political opponents: he’s immune. If it’s an official act to have his Homeland Security Department round up Latinos into detention camps and then deport them for no reason: he’d be immune for that. If it’s an official act to have his Vice President overturn the fair and free results of an election: he’s immune. They just handed Donald Trump the keys to a dictatorship. The Supreme Court just gave Trump a permission slip to assassinate and jail whoever he wants to gain power.”
“Today’s ruling only underscores the stakes of this election – this is not just about partisan politics, this is about freedom,” said DNC Chair Jaime Harrison.
“Here are the facts: on January 6, Donald Trump inspired a mob of violent insurrectionists, who attempted to overturn the results of a free and fair election. He has repeatedly put himself above our democracy, our constitution, and the American people. It’s hard to believe, but Trump has only become more unhinged in the years since he lost to Joe Biden, promising to be a dictator on ‘day one,’ suggesting the ‘termination’ of our Constitution to overturn valid election results, and warning of a ‘bloodbath’ if he loses again. The only thing standing between Donald Trump and his threats to our democracy is President Biden – and the American people will stand once again on the side of democracy this November.”
“This ruling puts former President Trump above the law, weakening a system of checks and balances, every man woman and child who calls themselves a proud American understands is at the core of our government,” said Analilia Mejia and DaMareo Cooper, the Co-Executive Directors of the Center for Popular Democracy.
“Trump’s hand-picked Justices are blatantly committed to an extremist MAGA agenda. The only way to restore the foundation of American democracy is to restore trust in our institutions, particularly the Supreme Court of the United States.”
“Enforceable ethics reforms, court expansion and term limits are key steps while we do everything we can to beat Trump in November.”
While NPI does not support term limits for members of Congress (in part because it could worsen our revolving door problem), we are open to them for Supreme Court justices, and wholly in favor of enforceable ethics reforms and court expansion.
Today’s decision, and those of last week, are a fresh reminder that the Supreme Court of the United States under John Roberts and his right wing colleagues is a corrupt, destructive entity that is ripping apart decades and centuries of jurisprudence.
Without action by the other two branches of government, it will continue to reach bad decisions that dismantle the rule of law and threaten our future.