close
close

Supreme Court reverses stakes on presidential immunity

Supreme Court reverses stakes on presidential immunity

It seems fitting that the Supreme Court’s decision to grant presidents — read: Donald Trump — robust immunity from criminal prosecution comes less than a day after Trump shared a meme on social media suggesting that his critics should be tried in a military tribunal on charges of treason. If Trump is re-elected in November, the court’s decision Monday would suggest that he would have enormous latitude to exact revenge on those he dislikes without fear of criminal prosecution.

This is not theoretical; in writing the majority opinion, Chief Justice John G. Roberts Jr. explicitly offered this idea. It is one reason why observers of threats to democracy saw such an outcome in Trump vs. the US so dangerous. Yet Roberts believes he is approaching that threat backwards.

“The President is not above the law,” the ruling said. “But” — and it is a big but — “under our system of separation of powers, the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts.”

Roberts dismisses criticisms voiced in the dissents written by Justices Sonia Sotomayor and Ketanji Brown Jackson. The dissents, he writes, “struck a tone of chilling doom that is wildly disproportionate to what the Court is actually doing today.”

Moreover, he later argues, Sotomayor and Jackson provide no constitutional basis for rejecting the idea that a president should have such immunity.

“Notably absent is any mention of the fact that since the Founding, no president has ever been criminally prosecuted—let alone for his conduct in office,” he notes. “And accordingly, no court has ever confronted the question of a president’s immunity from prosecution.” He paints a slippery slope: “Without immunity, these types of prosecutions”—that is, centrally political ones—“of ex-presidents could quickly become routine.” The result would be a “weakening of the presidency and our government.”

These are hard to square: If this hasn’t happened before, why would it happen routinely in the future? Just because Trump raised the issue, seeking protection from prosecutions stemming from his efforts to retain power after his 2020 loss? In essence, the majority opinion accepts an argument that the exceptional event here was the prosecution of Trump, not Trump’s actions leading to the prosecution.

This was a distinction that special prosecutor Jack Smith made in a document he filed with the court in April.

“This prosecution is a historic first, not because of any presumption of immunity, but because of the extraordinary gravity of the alleged conduct,” he wrote. Trump did something no other president has done, he crossed a line that had not been crossed, and criminal charges were the result.

The risk that the Supreme Court majority identifies and seeks to address is that others might be prosecuted, not that others — or re-elected presidents — might feel confident enough to ignore the law. Instead of addressing what is happening, they excuse it by theorizing about what might happen.

Roberts uses a president who uses his opponents as an example of something that is protected: “The President may discuss potential investigations and prosecutions with his attorney general and other Justice Department officials in order to carry out his constitutional duty to ‘take care that the laws be faithfully executed.'” With that sentence, Roberts apparently wanted to drop one of the charges that Trump will face in his indictment in Washington, DC. Trump allies could read that sentence as a subtle critique of what they think President Biden has done. But a Donald Trump who takes office on January 20, 2025, will read it as carte blanche.

Sotomayor’s dissent is particularly sharp in its criticism of the majority opinion, in line with her recent public comments about the court’s dire rulings yet to come.

“Today’s decision to grant criminal immunity to former presidents reforms the institution of the presidency,” her dissent begins. “It parodies the principle, fundamental to our Constitution and system of government, that no one is above the law.”

She gives examples of situations where—contrary to Roberts’s suggestion that this situation is new—the question of presidential criminality has been raised before. Previous special counsels, for example, have considered whether criminal charges could be filed. Richard M. Nixon accepted a pardon from President Gerald Ford that was “based on the premise that the former President might be criminally liable.” The result after Watergate was not a flood of partisan prosecutions.

“The majority’s overriding concern may be that presidents are deterred from taking necessary and lawful action by fear that their successors might saddle them with a baseless criminal prosecution—a prosecution that would almost certainly fail, if it were to get off the ground,” writes Sotomayor, who (as she has in the past) has articulated the system’s checks on unfair prosecutions. “The Court should not have so little faith in the presidents of this country.”

But Sotomayor clearly has her own concerns about future presidents, and her warnings about them are repeated. The decision “now sits ‘like a loaded weapon’ before any president who would put his own interests, his own political survival, or his own financial gain above the interests of the nation,” she writes. Elsewhere, she argues that “in every use of official power, the president is now a king above the law.”

This is the finding that most worried political scientists and other experts when they were polled earlier this year. Faced with various ways the justice system could endanger the democratic system, a presidential immunity finding was the one that experts saw as the most obvious and dangerous threat.

In the majority opinion, Roberts attempts to decouple the decision from Trump. (“Unlike the political branches and the public at large,” he writes, “we cannot afford to fixate exclusively, or even primarily, on the current emergency.”) But the decision is inextricably linked to Trump, in the direct sense that it virtually ensures that Trump will not be prosecuted for his efforts to overturn the 2020 election before the November election and in the sense that it offers Trump clear guidance about the power he could assume if he were to win.

It’s also a decision that comes at a time when Trump could seize power. One reason Watergate didn’t cause a partisan backlash is that partisanship wasn’t as toxic and divisive then as it is now. And again, one reason no president has ever been criminally charged for trying to retain power despite losing an election is that no president has ever made such an attempt to retain power despite losing an election.

In her dissent, Jackson highlights how the majority decision will fit into the current system.

“A majority of this Court, applying an indeterminate test, will pick and choose which laws apply to which presidents,” she writes, “by labeling his various alleged criminal acts as ‘core,’ ‘official,’ or ‘clearly or tangibly’ outside the president’s authority.” No standard is offered for determining what constitutes an official act. It is — like so much else in this Court’s estimation — something for the courts to decide and, ultimately, if they so choose, the Supreme Court.

A president who takes even extreme actions under the guise of his official duties faces a clear sanction. If a president “orders Navy Seal Team 6 to assassinate a political rival,” to use one of Sotomayor’s examples, he is immune from prosecution. He can be impeached, but as Trump has shown more than once, removal from office is unlikely unless there is a dramatic shift in the composition of the Senate.

Roberts is right that the question was asked now because of exceptional circumstances. He seems to be wrong about those circumstances. And those circumstances could arise again in about seven months.

“Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate criminal law,” Sotomayor’s opinion concludes. “But in the future, all former Presidents will be cloaked in such immunity.”

“Out of fear for our democracy,” she writes, “I disagree with this.”