The Trump Immunity Decision is Even Worse Than You Think. In a frightening ruling that gave the felonious former president more than he could have wished, the conservative supermajority expanded the imperial presidency.
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Giving the back of the hand to John Adams’s contention that the Constitution established a “government of laws, and not of men,” the Supreme Court now holds that a president is all but immune from prosecution for any act that might fall within “the outer perimeter” of a president’s official duties. The purported originalists on the Court seemed only too happy to jettison the admonition of the founders, enunciated in a brief filed by the Brennan Center on behalf of eminent historians, that no one is above the law.
In lock-step agreement, the Court’s far-right MAGA majority held, in a 6-to-3 ruling, that a president engaged in “official acts” gets “absolute immunity” from prosecution. But even a president’s questionable actions—should they lie on the boundary of official duties, are “presumptively immune,” making it nearly impossible to hold the executive accountable. As usual, the justices led by Chief Justice John Roberts also left lower courts with a confusing standard that guarantees endless litigation over the president’s power to skirt the law.
The question the Court faced was simple: Could Donald Trump be prosecuted for the crimes he allegedly committed as president? The January 6 case, brought by Special Counsel Jack Smith, charged the former president and presumptive Republican presidential nominee with three charges of conspiracy and one count of obstructing an official proceeding, which grew out of his efforts to thwart the peaceful transfer of power to newly elected President Joe Biden.
At trial, the D.C. district court judge, Tanya S. Chutkan, got it right when she denied Mr. Trump’s immunity request in December. “Whatever immunities a sitting president may enjoy, the United States has only one chief executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass,” she wrote. The D.C. Circuit Court of Appeals reaffirmed her view in a unanimous ruling in February. Underscoring the outrageousness of Trump’s appeal, Judge Florence Pan, who sat on the Circuit Court’s three-judge panel, posed the question to Trump’s lawyers as to whether their arguments would allow the president to order the U.S. Navy’s Seal Team Six to assassinate a political rival. Their answer was yes. And now that’s the law.
The Supreme Court should have rapidly affirmed the circuit court’s decision and sent the case back to the trial court on short order, but instead, it took the case and took its time, delaying a ruling for months despite the special counsel’s pleas that they act speedily.
The main worry for those concerned about democracy was that the court’s glacial pace would, in effect, help Trump by pushing the trial back past the election, denying the American people a determination as to his guilt and almost certainly allowing him to scuttle the case should he win on Election Day.
Despite the radicalism of the Roberts Court, few legal scholars anticipated how far the decision would go toward giving Trump everything he wanted and expanding the powers of the presidency. Even those of us who find this court dangerous to democracy wore blinkers, assuming that Chief Justice Roberts, who prides himself as an institutionalist concerned with the public’s faith in the Court, would craft a narrower holding. Instead, Roberts, who has blown up precedent before (See Voting Rights), chose to author the opinion himself and wrote that a president is immune from prosecution for official acts and even, as in this case, using the Justice Department to help overturn an election.
According to Roberts’s stunning opinion, the president holds “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials.” And that means the president “may discuss potential investigations and prosecutions with his attorney general and other Justice Department officials” under the constitutional duty to “take care that the laws be faithfully executed.” Roberts wrote that even when the president uses an official act to pursue an unofficial one—such as exchanging a pardon or an ambassadorship for a bribe—their actions cannot be investigated, and motives cannot be questioned.
This is the extreme version of the unitary executive theory pushed by the Right for decades, beginning with President Richard Nixon and continuing through Republican administrations ever since. Most conservative justices (Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Roberts) served as lawyers in those administrations. (Perhaps it’s telling that Amy Coney Barrett, the sole GOP appointee who has not served in a GOP administration, wanted limits on the get-out-of-jail-free card the Court handed the president.) The executive branch veterans, though, have long held that the presidency should be given an extremely wide berth—except, it seems, in areas such as regulations. This week, the Roberts Court scotched the decades-old Chevron Doctrine, which provides agencies with reasonable authority to interpret statutes. The president can engage in criminal activity, but his EPA cannot regulate greenhouse gases.
Justice Sonia Sotomayor chillingly laid out how an unleashed president—and Trump will surely be one should he be re-elected—could operate:
Looking beyond the fate of this particular prosecution, the long-term consequences of today’s decision are stark. The court effectively creates a law-free zone around the president, upsetting the status quo that has existed since the founding. This new official-acts immunity now ‘lies about like a loaded weapon’ for any president that wishes to place his own interests, his own political survival, or his own financial gain above the interests of the nation.
The former prosecutor goes on to describe what this might entail: “Orders 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.”
Despite the horror of this decision, including Roberts’ essentially blessing a president’s use of the bully pulpit to encourage insurrection, he wrote that “most of a president’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities.” That means there is still some room to charge Trump should his actions involve activities undertaken by “a candidate for office.” Thus, talking to Vice President Mike Pence to get him to reject the Electoral College vote might be a legitimate basis for a prosecution because the VP’s role is clearly limited by law and offers no role for the president. Other possible areas of inquiry include Trump’s efforts to get state officials to scrap election results and the creation of fraudulent slates of electors.
Some see faint hope in the opportunity for Special Counsel Smith to use the upcoming fact-finding hearing that follows the decision to flesh out the non-official acts that might form the basis for a prosecution. The trial court will now have to conduct what will essentially be a mini-trial right before the election. Since the Court, after dragging its heels for months, did not order Chutkan to hurry, it will be at least 32 days before the process starts. But one must indeed be Panglossian in the extreme to think that the trial will conclude before Election Day or that it would hinder the felonious 45th president’s campaign. The public, like the Court, seems increasingly numb to Trump’s criminality.
In what used to be an example of a presidency run amok, Richard Nixon bragged to interviewer David Frost that he couldn’t be prosecuted for Watergate because “when the president does it, that means it’s not illegal.” It may not have been the law then, but it is now, and we might as well call the presidential inauguration a coronation.
Long live King Donald.
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