IF last week’s debate was not victory enough for former president Donald Trump, he had another windfall land in his lap this Monday. On July 1, 2024, the US supreme court issued its decision, stating that the former president enjoyed presidential immunity for official acts during his term in office. The supreme court remanded the case back to the trial court for a decision on what the ‘official acts’ would be.
The stunning decision took a very broad interpretation of immunity, including the president telling his own Department of Justice to prosecute political opponents and other people he did not like. It also follows that some of Trump’s acts on Jan 6, which included refusals to call the National Guard and other law-enforcement against the protesters, could be immune from prosecution if they fall under official acts.
The political scene in the US was already in disarray since President Joe Biden’s dismal debate performance last Thursday. For those who did not watch the event, it showed the 82-year-old Biden faltering, hesitant, pale and losing his train of thought. In sum, all the attacks that the Trump team had been making on Biden’s inability to hold office at his age were given full credence. So awful was the performance that even after the first 10 minutes were over, Democratic operatives were in a state of panic about what would happen next.
Many already began to float the possibility of an open convention in which Biden would release the delegates that have pledged support for him to be free to choose someone else as the presidential candidate. For his part, Biden issued a statement the next day that he had full intention to contest the coming election and was not considering relinquishing the nomination. This has not quelled rumours of an open convention or of everyone from Vice President Kamala Harris and Michigan Governor Gretchen Whitmer to Pennsylvania Governor Josh Shapiro taking over the top slot on the ticket. These wranglings continue, with some Democratic operatives arguing that a new candidate now would be worse than Biden, and others insisting that Biden would more or less guarantee a Democratic loss.
In this maelstrom of confusion is the historic decision virtually guaranteeing that Trump reinstated in the presidency will have drastically more powers than he enjoyed in his previous term. Writing in her dissent for the minority, Justice Sonia Sotomayor said that the decision signed on by the majority had given such broad powers to the presidency that the president could order Seal Team Six to assassinate someone and be immune from prosecution if his directive could be considered an official act. She said that the decision makes a “mockery” of the precept that “no man is above the law”. “The president,” Sotomayor wrote, “is now a king”.
The US supreme court’s decision virtually guarantees that Trump reinstated in the presidency will have drastically more powers than he enjoyed in his previous term.
For her part, dissenting Justice Ketanji Brown Jackson wrote: “Even a hypothetical president who admits to having ordered the assassinations of his political rivals or critics, or one who indisputably instigates an unsuccessful coup, has a fair shot at getting immunity under the majority’s new presidential accountability model.” Basically, while everyone else in the US lives within the confines of the country’s laws, the president is going to be above the law, Brown Jackson wrote.
The majority, however, saw things differently, the notable difference being that they did not see how a president could conduct his office without having immunity for official actions even after his term as president was over.
There are wider repercussions stemming from the supreme court’s decision. On the legal front, it detracts from the legitimacy of America’s supreme court which has increasingly been attacked in recent days for harbouring political biases even as it pretends at neutrality. The fact that many of the justices in the majority were Trump appointees does not help the reputation of the courtroom, which will be scoffed at as simply doing the bidding of the party and the president that initially gave them their cushy jobs. The recent controversies regarding the political leanings of conservative justices like Samuel Alito and the long-standing accusations of political bias against him do not help the court’s failing status as a neutral arbiter.
The decision has amplified panic among the Democrats for a number of reasons. Many are now afraid that another Trump term will not be simply terrifying but also downright catastrophic, with an unhinged president using all sorts of ‘official acts’ as the basis for settling vendettas, intimidating political enemies and political score-keeping. This makes the stakes extremely high for the November election. Those asking for Biden to step aside can point to the extreme conservatism of the court and argue that other things previously thought impossible, such as a ban on birth control and in vitro fertilization, are not hard to imagine, coming from a court that is showing its extreme conservatism in this decision.
Finally, there are implications for international jurisprudence as well. Many democratic countries struggle with the issue of how to assess the criminal actions of past leaders. This decision offers a huge carte blanche saying that governance itself necessitates a level of insulation against being held accountable for one’s actions. It is particularly frightening that the decision was instigated by a case in which the then president is known to have ordered supporters to attack another democratic institution. The chief justice of the supreme court did not think so; in his opinion granting immunity was one of the ways that a country could be kept away from an endless cycle of past rulers being forced into court and being prosecuted every time a new government was elected.
The writer is an attorney teaching constitutional law and political philosophy.
Published in Dawn, July 3rd, 2024
