The Supreme Court's decision to grant the President immunity from prosecution for acts performed in official capacity is an extraordinary expansion of executive power that will have repercussions long after Donald J. Trump is gone.
In addition to its immediate impact on the election interference lawsuits against Trump and hopes that legal constraints may be relaxed if he returns to power, the ruling also adds to a nearly relentless increase in presidential power that has continued since the mid-20th century.
In recent years, several lower court decisions addressing new legal issues raised by Trump's unconventional behavior have noted that the president is not a king, a truism that seemed like a constitutional truism. But suddenly, the president enjoys a kind of monarchical privilege.
“The relationship between the president and the American people has been irrevocably altered,” Justice Sonia Sotomayor wrote in an indignant dissent joined by the court's two other liberal justices. “In every exercise of civil power, the president is now a king above the law.”
Chief Justice John G. Roberts dismissed those concerns, writing in the majority opinion that the president is a separate entity from the general public and therefore needs to be protected from prosecution if he is accused of abusing his power and committing crimes in office.
“Unlike anyone else, the president is a branch of government with broad powers and duties given to him by the Constitution,” he wrote.
He added: “Given that reality, ensuring that the president can enforce those powers as the Constitution's framers anticipated is not putting the president above the law. It's preserving the basic structure of the Constitution that provides the basis for that law.”
These competing claims about what risks the Founders intended to protect against with the Constitution will go down in history as a generations-old debate over presidential power.
No former president before Trump has been charged with committing a crime while in office, raising questions about whether Biden's Justice Department broke with practice by authorizing a special counsel to indict Trump when previous presidents enjoyed immunity from prosecution, or whether most other presidents were simply not criminals.
After Richard M. Nixon resigned to avoid impeachment for abuse of power in the Watergate scandal, his successor, Gerald R. Ford, dropped the criminal investigation by pardoning Nixon, an unpopular move that may have cost Ford his election defeat in 1976.
President Nixon accepted the pardon, but Monday's Supreme Court ruling makes it appear the pardon was entirely unnecessary.
Executive power had been growing for decades before Nixon was forced to resign. As World War II spilled over into the early Cold War, presidents of both parties began to act more unilaterally, especially in matters of national security, asserting their constitutional right to keep information secret from Congress and the courts.
Historian Arthur C. Schlesinger Jr. famously described this pattern as the “imperial presidency” in his 1973 book. This proliferation reached its peak under President Nixon, who later summarized his philosophy of executive power as “whatever the president does, means nothing illegal.”
This trend was temporarily abated in the mid-1970s, following Watergate, the Vietnam War, and congressional investigations that exposed domestic intelligence abuses by administrations of both parties, when Congress attempted to restore checks and balances with a series of new laws and oversight measures.
But those constraints began to weaken again in the 1980s, when President Ronald Reagan and his team sought to pursue an aggressively conservative agenda despite resistance from a Congress long dominated by Democrats.
As a result, Reagan administration lawyers crafted constitutional theories that allowed the president to do whatever he wanted even if Congress opposed them, including the so-called unitary executive theory, which holds that Congress cannot undermine presidential control over the executive branch by, for example, granting independent decision-making powers to regulatory agencies.
To be sure, Democratic presidents have also pushed the envelope on individual issues. The executive branch often functions like a one-way ratchet: It is easier to expand power than to reduce it, and one president's innovations provide a baseline of precedent for successors in both parties to build on when the need arises.
But the political contingencies of the Reagan era meant that the movement to expand presidential power was absorbed into the broader conservative legal movement of the same period, giving rise to an ambitious Republican legal profession.
Over time, as Republican presidents began to nominate lawyers who were not only ideologically conservative but also had experience in the executive branch, that attitude permeated the upper echelons of the judiciary.
Three of the Supreme Court's conservative majority — Chief Justice Roberts, Justice Clarence Thomas, and Justice Samuel A. Alito Jr. — were lawyers during the Reagan administration.
The other two, Justices Neil M. Gorsuch and Brett M. Kavanaugh, served under President George W. Bush and promoted broader views of the president's exclusive constitutional powers, particularly on national security issues that emerged frequently after the Sept. 11, 2001, terrorist attacks.
Only Justice Amy Coney Barrett, a former law professor who has never worked as an executive branch lawyer, notably joined the majority in a more moderate dissenting opinion and joined the dissenting opinion on whether jurors should be able to explain the president's official actions at least in the context that is relevant to understanding his private actions.
The structure of accountability (or lack thereof) the nation currently follows for official presidential criminal conduct, as laid out by Chief Justice Roberts' majority opinion, has three categories:
The first are unofficial crimes that happen to be committed by someone who is president, but fall entirely outside the realm of presidential liability: in theory, former presidents could also be charged with these kinds of crimes.
At the other end of the spectrum are crimes the president commits as part of his “core” constitutional powers and responsibilities. Congress cannot interfere with how the president exercises those powers through criminal law, the majority said.
Thus, the president is free to abuse these powers with complete immunity from subsequent prosecution. At the very least, this category clearly includes those enumerated in the Constitution, such as the granting of pardons and the power to veto bills.
But the majority opinion said that category also included Trump's attempts to incite Justice Department officials to investigate false allegations of voter fraud.
Chief Justice Roberts wrote that the president has “exclusive authority over the investigative and prosecutorial functions of the Department of Justice and its personnel.” By that standard, he said, the president “may consult with the Attorney General and other Department of Justice officials about potential investigations and prosecutions” under his constitutional duty “to see that the law is faithfully executed.”
The remarks were particularly noteworthy because since Watergate, the norm has been that Justice Department investigations are independent of White House control, but Trump has already undermined that norm during his administration, vowing to use the Justice Department to retaliate against his opponents if he returns to power.
Finally, the majority opinion outlined a third, more vague category that encompasses official presidential acts that aren't core executive powers, over which Congress shares overlapping powers and which could, in theory, be subject to criminal law.
According to the majority opinion, the president is “presumptively” immune from criminal prosecution for conduct that falls into this category, but that immunity can be overturned “if prosecutors can show that application of a criminal prohibition to the conduct would not 'pose a great danger of impinging on the powers and functions of the executive branch.'”
But in her dissent, Justice Sotomayor called that distinction a farce. In practice, she said, it is essentially impossible for prosecutors to prove there is “no risk” of such a breach.
She asserted that the majority would create a “lawless zone” around the president that would remain a “weapon” to be wielded by future occupants of the White House, and listed “nightmare scenarios.”
“Orders to the Navy SEALs Team 6 assassinating a political opponent? Immunity. Plotting a military coup to stay in power? Immunity. Taking a bribe in exchange for amnesty? Immunity. Immunity, immunity, immunity.”
Chief Justice Roberts responded by calling that list of possible misconduct “fear-mongering based on extreme hypotheticals.” He wrote that the dissenting justices overlooked “the more likely prospect that the executive branch would consume itself, as successive presidents, free to indict their predecessors, would be unable to act boldly and fearlessly out of fear that they might be next.”
But Justice Sotomayor accused the majority of ignoring “the competing needs of accountability and restraint” in its fixation on presidential boldness and responsiveness, adding that never before in American history has there been reason to believe that a president could use the power of his office to commit a crime with immunity from prosecution.
“But now all former presidents will be covered by such immunity,” she wrote. “If those who hold that office abuse their public power for personal gain, they will not be backed by the criminal laws we all must obey.”
