The Supreme Court issued a stunning closing decision on Monday morning, handing a gift of immeasurable value to Donald Trump and any future president who would seek to violate the law and their oath to the Constitution. In a 6-3 decision, the Court's conservative majority said that official acts that are core to the presidency are “absolutely immune from prosecution.” Other acts, even those that extend outside the president's official duties, are “presumed immune,” making them much harder to prosecute, the Court said.
While this decision is one of the Supreme Court's most significant on the topic of presidential power and constitutional rule, its immediate effect was to indefinitely postpone the prosecution of Trump for his attempts to overturn the results of the 2020 election. Voting this fall will almost certainly proceed without any legal consequences for his actions. But the long-term dangers to the Constitution and the U.S. government are even more serious given the very real possibility that Trump, whose recent conviction in New York is just the latest evidence of his disregard for legal boundaries, could return to office within just a few months.
As of Monday, the fundamental principle that no one is above the law was ignored. In the very week that the nation celebrates its founding, the Supreme Court undermined the aims of the American War of Independence, gave the president a playing field that it called “lawless,” and took a step toward restoring the monarchy that the Declaration of Independence repudiated. Presidents can still be impeached for crimes committed while in office, but they are unlikely to be prosecuted. They can take once-unthinkable actions, such as encouraging a riot at the U.S. Capitol, without fear of later jail time or legal consequences.
Justice Sonia Sotomayor, joined by two other liberal justices, wrote in a sharp dissent that the ruling creates a series of “nightmare scenarios” for what a president can now do: “Order Navy SEAL Team Six to assassinate a political opponent? Immunity. Orchestrate a military coup to stay in power? Immunity. Take a bribe in exchange for a pardon? Immunity. Immunity, immunity, immunity.”
She added: “The relationship between the president and the people has been irrevocably altered. In every exercise of public power, the president is now a king above the law.”
The decision, written by Chief Justice John Roberts, significantly elevates the importance of the upcoming election. Not only does it clarify the importance of presidential appointments to the Supreme Court (all three of Trump's nominees voted to grant the immunity the president sought), it also gives Trump full power to act more decisively in his second term than he did in his first. The Chief Justice made clear that Trump's speech and tweets on January 6, 2021, urging his supporters to go to the Capitol and disrupt the certification of the vote, may be protected as a standard use of presidential coercive rhetoric. The Supreme Court remanded the case to the district court for a factual determination on that and other questions, a process that will take months, possibly longer, including an appeal.
Still, we know that Trump's words and tweets have incited violent insurrection. How much worse could it get in a second term, knowing that he can do so with impunity? The most immediate danger is that he could abuse the legal system. If, as the dissent suggests, every conversation between the president and the Justice Department counts as protected official business, there's no limit to the types of illegal conduct that could be planned, even including the fabrication of evidence.
What does not count as formal conduct? The majority did not say, but clear guidelines are hard to pin down, perhaps because the justices could not find any.
Prior to this decision, the president had no criminal immunity. The Framers of the Constitution granted some of that immunity to members of Congress, but not to the chief executive. For a conservative majority that pretends to rely on historical precedent, the newly created standard is remarkable in that it is based not on any constitutional, statutory, or judicial precedent. It is a creation of fantasy.
The majority's invention runs counter to the very notion of a government based on the rule of law, as well as the long-established understanding that a president can be criminally prosecuted regardless of whether his actions were “official.” As Justice Sotomayor pointed out, Richard Nixon accepted a pardon for his role in Watergate because everyone agreed that his actions could have been prosecuted otherwise.
That same understanding was evident at Trump's second impeachment trial in 2021. His lawyers argued to senators that acquitting him of his actions around January 6 would not put him “in any sense above the law.” They acknowledged that the former president “can be tried in a court of law like any other citizen.”
Not anymore. In the words of Justice Ketanji Brown Jackson, this is a “five-alarm fire that threatens to consume democratic self-governance and the normal operation of government.”
Chief Justice Roberts sought to allay concerns about the impact of the court's ruling, saying, “The President does not enjoy immunity for informal acts, and not all of the President's acts are official. The President is not above the law.”
But informal conduct, such as campaign speeches, was not at the heart of the controversy. Even Trump's lawyers acknowledged that informal conduct cannot be exempt from prosecution. The problem is that the scope of “official” is undefined, according to this court. The majority refused to classify Trump's conduct as clearly informal, such as conspiring to rig the electoral rolls, which Trump's own lawyers acknowledged were not official.
“The court has rendered its decision,” Trump said after the ruling. As always, the only legitimate outcomes Trump will accept in the US government are those that benefit him personally. This is the stance he has pledged to take in the 2024 elections. If he loses, he has already said it will be because of fraud. If he wins, he will accept the message the court gave him on Monday and act accordingly. And the country will undoubtedly be worse off for it.
