Part of the Series
Human Rights and Global Wrongs
Today, Americans celebrate Independence Day, commemorating the Declaration of Independence when the colonists threw off the yoke of King George III. When they crafted it, the framers of the Constitution established three co-equal branches of government to check and balance each other.
But the Supreme Court’s shocking decision in Trump v. United States takes us back to the bad old days of the monarchy. The reactionary supermajority held that presidents have absolute immunity from criminal prosecution for core official acts, and presumptive immunity for all other official acts.
Donald Trump is charged in federal court with conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of an official proceeding, and conspiracy against the right to vote for his acts to overturn the results of the 2020 presidential election.
Chief Justice John Roberts, writing for the six right-wingers, assured us that “the president is not above the law.” But he then proceeded to carve out a zone of immunity even broader than the one Trump’s legal team had sought.
Henceforth, a president will have absolute immunity from prosecution for official acts done in the course of carrying out his constitutional powers or implementing a federal statute. “We thus conclude,” Roberts wrote, “that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.” That includes commanding the armed forces, granting pardons, appointing ambassadors and members of the Supreme Court, overseeing international diplomacy and intelligence gathering, terrorism, trade and immigration.
A president has presumptive immunity for acts committed in “the outer perimeter of his official responsibility.” The burden is on the prosecutor to rebut that presumption of immunity by showing that prosecuting such an act would pose no “dangers of intrusion on the authority and functions of the Executive Branch,” a tall order.
“It is hard to imagine a criminal prosecution for a President’s official acts that would pose no dangers of intrusion on Presidential authority in the majority’s eyes,” Sonia Sotomayor noted in her impassioned dissent, joined by Elena Kagan and Ketanji Brown Jackson.
John Roberts, assured us that “the president is not above the law.” But he then proceeded to carve out a zone of immunity even broader than the one Trump’s legal team had sought.
Roberts wrote that conversations between Trump and high-ranking Department of Justice (DOJ) officials (in which he pressured them to declare the election was corrupt) are absolutely immune. That means Trump could not be prosecuted even if he ordered DOJ officials to indict all congressional Democrats.
Trump’s conversations in which he bullied then-Vice President Mike Pence to stop the count or suspend the certification of the electors and urged state officials to send slates of false electors, and Trump’s tweets and his January 6 speech on the Ellipse “present more difficult questions,” Roberts wrote.
The court sent the case back down to U.S. District Judge Tanya Chutkan to “carefully analyze” whether allegations in the indictment against Trump for trying to overturn the election results involved official conduct for which he would be immune from prosecution. That inquiry “may depend on the content and context of each,” Roberts added.
There is no immunity for unofficial acts. “There may, however, be contexts in which the President, notwithstanding the prominence of his position, speaks in an unofficial capacity — perhaps as a candidate for office or party leader,” Roberts noted. It will depend on content, form and context.
“But there is not always a clear line between the President’s personal and official affairs,” Roberts wrote. “Distinguishing the President’s official actions from his unofficial ones can be difficult.” But Roberts made that even more difficult by saying that “in dividing official from unofficial conduct, courts may not inquire into the President’s motives.”
Moreover, in a prosecution for unofficial acts, evidence of official acts will be excluded. Although she joined the majority opinion, Amy Coney Barrett disagreed with that holding. “Yet excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution” in a bribery case, she wrote in her separate concurrence. “To make sense of charges alleging a quid pro quo, the jury must be allowed to hear about both the quid and the quo, even if the quo, standing alone, could not be a basis for the President’s criminal liability.”
“The President Is Now a King Above the Law”
“In every use of official power, the President is now a king above the law,” Sotomayor wrote. “The court effectively creates a law-free zone around the president, upsetting the status quo that has existed since the founding.” The immunity the court created now “lies about like a loaded weapon” for any president to use for their own political gain or financial interests, with the knowledge that they are inoculated from criminal liability, Sotomayor added.
“In every use of official power, the President is now a king above the law,” Sotomayor wrote. “The court effectively creates a law-free zone around the president, upsetting the status quo that has existed since the founding.”
Now, when a president “uses his official powers in any way,” he will be immune from criminal prosecution, Sotomayor noted. “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.”
In her separate dissent, Jackson likewise sounded the alarm that U.S. presidents would be kings under the court’s ruling. “The majority of my colleagues seems to have put their trust in our Court’s ability to prevent Presidents from becoming Kings through case-by-case application of the indeterminate standards of their new Presidential accountability paradigm,” she wrote. “I fear that they are wrong.” The court has declared for the first time that “the most powerful official in the United States can . . . become a law unto himself.”
“From this day forward,” Jackson wrote, “Presidents of tomorrow will be free to exercise the Commander-in-Chief powers, the foreign affairs powers, and all the vast law enforcement powers enshrined in Article II however they please — including in ways that Congress has deemed criminal and that have potentially grave consequences for the rights and liberties of Americans.”
Former President Richard Nixon famously claimed that, “When the president does it, that means that it is not illegal.” But after the Supreme Court ruled that he could not assert executive privilege to undermine a criminal investigation, Nixon resigned rather than face criminal charges for his role in the Watergate break-in. John Dean, who was Nixon’s White House counsel, told HuffPost, “Presumptively, [the president] has the power to assassinate a rival” after the court’s ruling in Trump v. U.S.
Last December, Trump vowed that if elected, he would be a “dictator on day one” and promised “retribution” against his political rivals. Now he will presumably be immunized for those despotic pursuits.
Trump “plans to immediately test the boundaries of presidential and governing power, knowing the restraints of Congress and the courts are dramatically looser than during his first term,” his advisers told Axios.
Trump Gets “Legal” Cover for Past and Future Lawbreaking
In essence, the court has provided Donald Trump with “legal” cover for his lawbreaking in his effort to hold onto power after the 2020 presidential election, and license to blatantly break the law if he receives a second term. Although the DOJ will continue to pursue its prosecutions of Trump, the court’s delay in issuing this ruling has made it virtually impossible for Trump to go to trial on his three remaining criminal indictments before the November election. If and when he is elected, Trump could order his Justice Department to dismiss the two federal cases pending against him.
Trump vowed that if elected, he would be a “dictator on day one” and promised “retribution” against his political rivals. Now he will presumably be immunized for those despotic pursuits.
After the court handed him nearly unfettered power, Trump posted on Truth Social: “BIG WIN FOR OUR CONSTITUTION AND DEMOCRACY. PROUD TO BE AN AMERICAN!”
Joe Biden slammed the ruling, saying, “No one is above the law, not even the president of the United States.” Now, however, “there are virtually no limits on what a president can do,” he added.
Biden said, “I know I will respect the limits of presidential power as I have for the three-and-a-half years, but any president, including Donald Trump, will now be free to ignore the law.” Biden apparently forgot that when he was sued in U.S. district court for complicity in genocide and failure to prevent genocide in Gaza, his legal team argued that there were no constraints on the president’s foreign policy decisions. In essence, he claimed that he was free to violate the laws prohibiting genocide because he is the president.
Although Trump’s federal conspiracy trial will be delayed so that Judge Chutkan can decide which of his actions are immune from criminal consequences, it will provide a valuable opportunity for a full and public hearing about the former president’s actions to overturn the election results.
Chutkan will scrutinize Trump’s use of lies regarding election fraud to convince state officials to alter the results; his plot to create false slates of electors; his campaign to pressure Pence to violate his constitutional duty to refuse to certify the election results; and his efforts to exploit the chaos and violence he unleashed at the Capitol on January 6.
Stay tuned.