This article August 2024 issue American Outlook The post was published in a magazine and written before the July 13 assassination attempt on former President Trump.
The full Supreme Court ruling on presidential immunity Trump vs. the United States It will take time to digest. By not ruling on this case swiftly, the Supreme Court has effectively prevented Donald Trump from being prosecuted before the next presidential election for trying to overturn the previous ruling. The impact of this decision is not so much a protection against what Trump has done in the past, but rather a protection against what he and others may do as president in the future. As Justice Sonia Sotomayor stated in her powerful dissent, the decision “makes a mockery of the bedrock principle of our Constitution and political system: that no one is above the law.”
Protecting the President from criminal prosecution exposes everyone else, and every institution outside the government, to greater risk of abuse of power. The Supreme Court's decision gives license to presidential vengeance and intimidation, and does so at a moment when the man seeking the presidency has fully demonstrated his intent to use that license.
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Many may have discounted Trump's repeated promises of “ultimate and absolute revenge” and his intention to use the Justice Department to prosecute his opponents if he wins the election. Promote your social media posts He called for a “televised military tribunal” and the imprisonment of Joe Biden, Kamala Harris, Mitch McConnell, Chuck Schumer, Mike Pence, Nancy Pelosi, Liz Cheney, and other members of the House Select Committee investigating the January 6 riot.
These threats may seem far-fetched, but we now have another reason to take them seriously. We already knew that a second Trump term would remove the White House and Cabinet people who had checked him the first time. We already knew that two impeachment trials had made Senate Republicans an ineffective check. And now the Supreme Court has eliminated another check, ruling that there is no reason for the president to fear being prosecuted for criminally abusing the power of the presidency.
The ruling is particularly relevant to President Trump’s potential ability to use the powers of the Department of Justice to threaten and intimidate anyone who gets in his way. It holds that federal prosecutorial power is a core function of the presidency, and the president cannot be held criminally liable for using that power. The Supreme Court has been vague on the exact scope of presidential immunity, but it has been clear on this point: “Because the President cannot be prosecuted for acts that fall within his exclusive constitutional powers, President Trump enjoys total immunity from prosecution for his alleged consultations with Department of Justice officials.” In this case, it doesn’t matter that President Trump had instructed Department of Justice officials to make unsubstantiated statements that the 2020 election was fraudulent. Information about those consultations cannot even be introduced as evidence as part of a prosecution for private actions he took to overturn the election.
The Supreme Court's decision nullified what once seemed a national consensus about appropriate limits on presidential power in the wake of the Watergate scandal.
If what Trump said to Justice Department officials is not grounds for indicting him, then he and all future presidents are free to demand that officials investigate and instigate spurious prosecutions of opponents of their administration. And if a president cannot be punished for making such demands to the Justice Department, he can make similar demands on the FBI, IRS, and other agencies to harass, intimidate, and punish opponents of the incumbent. The Supreme Court has been clear about the president's complete power over the executive branch.
“The central point of today's ruling is that all of the President's official acts, defined without regard to motive or intent, are entitled to 'at least' immunity,” Sotomayor wrote. Putativeand perhaps even “absolute.”
There are two important distinctions here — between “official” and “unofficial” conduct, and between “absolute” and “constructive” immunity — but neither offers much hope of restraining a president who seeks to criminally and corruptly abuse his power.
The way the Court currently distinguishes between official and non-official conduct defines a much broader range of conduct as “official conduct” than the Court defined in its 2016 case. McDonnell v. United Statesconcerning the corruption conviction of former Republican Governor Robert F. McDonnell of Virginia. In that case, the Supreme Court narrowly defined official business as a decision or action regarding “any question, matter, cause, action, proceeding, or controversy” and “the formal exercise of government power.” To be considered “official business,” the action taken by a public official had to involve addressing a problem in government, not merely setting up a meeting or discussing it with other public officials, as in McDonnell's case. By narrowly defining official business in that context, the Supreme Court made it more difficult to convict public officials of corruption. It is one in a series of decisions that have consistently exonerated public officials from accountability under criminal law.
The court's decision Trump vs. the United States It achieves the same result, namely, limiting public liability to the criminal law. Opposition The Court has determined that the President has at least “constructive” and perhaps “absolute” immunity for all official acts, and it has defined official acts broadly. The Court has said that absolute immunity applies to the core area of presidential power, while constructive immunity applies to the “periphery” of presidential functions. And the Court has made clear that this periphery is very broad.
The Supreme Court's decision noted that Trump's indictment “contains a variety of allegations about Mr. Trump's conduct related to the events of January 6 itself. The alleged conduct is primarily Mr. Trump's communications in the form of tweets and speeches,” and went on to cite previous case law, noting that because the President has “extraordinary authority to speak to and on behalf of the public,” “most of the President's public communications are likely to fall well within the outer boundaries of his official responsibilities.” While the Court noted that the President may also speak in an unofficial capacity, it suggested that lower courts would need to closely analyze the facts in every case to determine whether communications are official. McDonnell How narrowly should public action be defined?
“The line the majority draws between 'official' and 'unofficial' conduct all but nullifies conduct that could be considered 'unofficial,'” Sotomayor wrote. “Any time the president acts in a manner that is not 'clearly or demonstrably beyond his bounds,'” [his] “They are taking formal steps, not exercising 'authority,'” she points out. She also points out that the distinction between “presumed” and “absolute” immunity offers little comfort, since a court decision would make it extremely difficult to overturn a presumed immunity.
One effect of the Supreme Court's decision is to nullify what had seemed to be a national consensus and clear public norms about the proper limits of presidential power in the wake of Watergate. Richard Nixon had clearly abused his power by using the Department of Justice and the IRS to launch attacks on his opponents. The post-Watergate norms called for the president to cease direct control of individual investigations and prosecutions. In contrast, the Supreme Court's decision strongly supports the “unitary” theory of the executive branch, the idea that no part of the executive branch is independent of the president. Now the Court adds that the president need not worry about any criminal law limitations on improper claims against the very agencies that were the instruments of Nixon's abuse of power.
Trump and other Republicans make no secret of the many people and groups they consider to be their enemies. Trump often refers to journalists as the “enemy of the people.” Many in the media are in financially precarious situations, making them easy targets. Universities are also easy targets. Many are also in financial difficulty, and even private ones are vulnerable to government pressure because they rely on the government for research funding, which could be cut off. The entire nonprofit sector, especially nonprofits that are active in political issues, are vulnerable because their tax exemptions could be jeopardized. This is explained by my colleague Robert Kuttner in this issue.
Thanks to legal and normative constraints on government power, we have lived in a relatively free society. Critics who describe the Supreme Court's decision as a prescription for dictatorship are not exaggerating: the Court has created exactly that. If Trump wins a second term, institutions and people who oppose him should prepare for a full-scale attack, with the full power of government turned against them. We have already seen the entire Republican Party threatened and brought under Trump's control. The rest of the country may soon face a test of courage where the Republican Party has failed.
