This is not theoretical. Chief Justice John G. Roberts explicitly put the idea forward when writing the majority opinion. One reason observers of threats to democracy expected such an outcome is that Trump vs. the United States But Roberts sees the threat in the other direction.
“The President is not above the law,” the opinion states. “But,” and this is a very big but, “our nation's system of separated powers does not allow the President to be prosecuted for the exercise of core Constitutional powers, and at a minimum, the President is entitled to presumed immunity from prosecution for official acts.”
Roberts rejected the criticisms leveled in a dissent written by Justices Sonia Sotomayor and Ketanji Brown Jackson, which he wrote “takes a chillingly pessimistic tone that is totally out of proportion to what the Supreme Court currently does in practice.”
Moreover, he argues later in the book that Sotomayor and Jackson have not presented any constitutional basis for rejecting the idea that the president should have such immunity.
“Conspicuously absent is any reference to the fact that, since the nation's founding, no president has ever faced criminal charges, let alone conduct while in office,” he points out. “Thus, no court has ever faced the issue of presidential immunity.” He presents a dangerous situation: “Without immunity, these types of prosecutions against former presidents” — prosecutions that are politically central — “could soon become commonplace.” The result would be “the weakening of the presidency and the government.”
These are difficult to reconcile. If this hasn't happened before, why will it become commonplace in the future? Is it only because Trump asserted this issue and sought protection from prosecution rooted in his efforts to retain power after his defeat in 2020? In essence, the majority accepts the argument that the exceptional event here was the prosecution of Trump, not his conduct that led to the prosecution.
It's a distinction that special counsel Jack Smith emphasized in court filings in April.
“This prosecution is a historic first, not because of a presumption of immunity but because of the gravity of the conduct alleged,” he wrote. Trump did something no other president has done, crossed a red line that resulted in a criminal indictment.
The risk the Supreme Court majority identified and is trying to address is that others might be prosecuted, not that others, or a re-elected president, might feel confident ignoring the law. Instead of addressing what is happening, they are rationalizing the situation by theorizing about what might happen.
Roberts cited the president's targeting of his opponents as an example of what would be protected: “The President may consult with the Attorney General and other Department officials about potential investigations or prosecutions in accordance with his constitutional duty to 'care that the laws are faithfully executed.'” With this sentence, Roberts appears to have intended to exclude one of the charges against Trump in the Washington indictment. Trump supporters may read this sentence as a subtle rebuke to what they believe President Biden has done. But Donald Trump, who takes office on January 20, 2025, will likely read it as a blanket discretionary power.
Sotomayor's dissent was in keeping with her recent public comments about the dire consequences of future court decisions, and she was particularly harsh in her criticism of the majority opinion.
“Today's decision to grant immunity to a former president reconstructs the presidency,” her dissent began. “It makes a mockery of the fundamental principle underlying our Constitution and political system: that no man is above the law.”
She points out that contrary to Roberts' suggestion that this situation is new, the issue of presidential criminal conduct has come up before. For example, past special counsels have considered whether criminal charges should be brought; Richard M. Nixon accepted a pardon from President Gerald Ford “with the understanding that a former president may be held criminally liable.” The post-Watergate result was not one of partisan prosecution attempts one after the other.
“The majority's primary concern may be that presidents will be deterred from taking necessary lawful action out of fear that a successor president might accuse them of baseless criminal prosecutions that are almost certainly doomed to fail if they even get a starting point,” Sotomayor wrote. She was explicit (as she has in the past) about the system's checks against unjust prosecutions: “The Supreme Court should not have that much confidence in the president of this nation.”
But Sotomayor clearly has her own concerns about future presidents, and has repeatedly sounded the alarm on that point: “The decision now lies 'like a loaded weapon' for any president who wants to put his own interests, his own political survival, or his own financial gain above the interests of the nation,” she wrote, and elsewhere said, “In all exercises of public power, the president is now a king above the law.”
This is the finding that most concerns political scientists and other experts in a study conducted earlier this year. While the study laid out several ways in which the legal system could endanger democratic institutions, the finding of presidential immunity was what experts deemed the most clear and dangerous threat.
In the majority opinion, Roberts sought to insulate the decision from Trump (“Unlike the political branches and the public at large, we cannot afford to be fixated solely or even primarily on the present emergency,” he wrote.) But the decision is inseparable from Trump. In a direct sense, it means that Trump will almost certainly not be prosecuted for trying to overturn the results of the 2020 election before the November election, and it also means that it provides him with clear guidelines about the powers he might have if he wins.
Moreover, Trump's rise to power was the result of decisions made in the heat of the moment. One reason Watergate did not provoke a partisan backlash is because partisanship was not as toxic and divisive then as it is now. And one reason no president has ever been criminally charged with trying to stay in power after losing an election is because no president has ever tried to stay in power after losing an election.
In his dissent, Jackson pointed out how the majority's decision applies to the current system.
“A majority of this Court will sort which laws apply to which Presidents by applying indefinite standards to categorize various alleged Presidential criminal conduct as 'core,' 'official,' or 'clearly or manifestly' beyond Presidential authority,” she wrote. No standard has been offered for determining what constitutes official conduct; that, in this Court's view, like so many other matters, is for the Court to decide, and ultimately, for the Supreme Court to decide.
If the president takes extreme actions under the guise of official duties, he will of course be subject to sanctions. If, as in Sotomayor's example, the president “orders Navy SEAL Team Six to assassinate a political opponent,” he will be immune from prosecution. He can be impeached, but as Trump has demonstrated many times, removal from office is unlikely unless the makeup of the Senate changes dramatically.
Mr Roberts correctly points out that exceptional circumstances have caused this issue now – but he appears to be wrong about those circumstances – and those circumstances could arise again in about seven months' time.
“There has never been any basis in the history of our republic to believe that a president could escape criminal prosecution if he used the power of his office to violate criminal laws,” Justice Sotomayor's opinion concluded, “but from now on, all former presidents will be covered by such immunity.”
“I oppose it out of fear for our democracy,” she wrote.
