Alito/Roberts Court decides that Donald Trump enjoys immunity for “official acts”

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.