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Sotomayor dissent: Liberal Supreme Court justices warn of lawless zone over Trump immunity ruling

Sotomayor dissent: Liberal Supreme Court justices warn of lawless zone over Trump immunity ruling

In a devastating dissent, Justice Sonia Sotomayor said the Supreme Court’s landmark ruling on immunity left her with “fear for our democracy.”

The 6-3 decision established a new, expansive definition of executive power. It said that former presidents are protected from criminal prosecution for “official acts” performed in the White House. However, they are not immune for “unofficial acts.”

The immediate result is a delay in Donald Trump’s 2020 election subversion case while the court determines which actions alleged by federal prosecutors are official, and therefore protected, and which are not.

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But both sides agreed that the ruling has far-reaching implications for the future of the presidency.

The impact, Sotomayor said, would be chilling. For the first time, she said that any use of official authority by the president “is now a king above the law.”

“If we look beyond the fate of this particular prosecution, the long-term implications of today’s decision are stark,” she wrote. “The Court is effectively creating a lawless zone around the president, upending the status quo that has existed since its founding.”

FILE - Supreme Court Justice Sonia Sotomayor, August 17, 2019, at the Mississippi Book Festival in Jackson, Mississippi.

FILE – Supreme Court Justice Sonia Sotomayor, August 17, 2019, at the Mississippi Book Festival in Jackson, Mississippi.

AP Photo/Rogelio V. Solis, Archives

Sotomayor went on to list some of the most serious examples raised during the immunity debates, saying the majority’s guidelines for immunity would give former presidents legal protection even in those circumstances.

“The President of the United States is the most powerful person in the country, and possibly the world. Whenever he uses his official powers in any way, he will now, by the majority’s reasoning, be immune from criminal prosecution,” she wrote. “Does the Navy Seal Team 6 order the assassination of a political rival? Immune. Organize a military coup to retain power? Immune. Accept bribes for pardons? Immune. Immune, immune, immune.”

Sotomayor was joined by Justices Elena Kagan and Ketanji Brown Jackson.

“As we enter this uncharted territory, the people, in all their wisdom, must remain ever vigilant and consistently fulfill their appointed role in our constitutional democracy. Together, we will provide the ultimate safeguard against any chaos wrought by this Court’s decision,” Jackson wrote in her dissent.

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Jackson described the majority threshold for deciding immunity on a case-by-case basis as complicated and confusing. The model they presented, she said, could give presidents more courage to act unlawfully.

“Now that some doubt has been cast as to when—if ever—a former president will be held criminally liable for criminal conduct committed while in office, the majority urges all future presidents to cross the line into criminality while still in office, knowing that unless they ‘act clearly or tangibly outside the bounds of the law,’ (their) “If left unchallenged by authorities, they are deemed above both prosecution and punishment,” she wrote.

Justice Amy Coney Barrett agreed with most of the majority opinion, but said she disagreed with the finding that conduct protected by immunity cannot be used as evidence to support other charges. This was also a point Sotomayor disagreed with.

“I disagree with that ruling; on this point I agree with the dissent,” Barrett wrote. “The Constitution does not require juries to be blind to the circumstances surrounding conduct for which presidents may be held liable.”

“To understand the quid pro quo charges, the jury must be able to hear both the quid and the quo, even if the quo alone cannot form a basis for the president’s criminal liability,” she said.

Chief Justice John Roberts opposed the liberal dissent, saying they “struck a tone of chilling ominousness that is completely out of proportion to what the Court is actually doing today.”

“Like everyone else, the president is subject to prosecution in his unofficial capacity. But unlike everyone else, the president is a branch of government, and the Constitution gives him sweeping powers and duties. Recognizing that reality — and ensuring that the president can exercise those powers by force, as the Founders expected him to do — does not place him above the law; it preserves the basic structure of the Constitution from which that law is derived.”

Roberts further argued that the dissenting justices overlooked the potential dangers of a lack of protection for presidential actions.

“Virtually every president is criticized for failing to adequately enforce some aspect of federal law (such as drug, gun, immigration, or environmental laws). An enterprising prosecutor in a new administration can allege that a previous president violated that broad law,” Roberts wrote.

“Without immunity, these types of prosecutions of former presidents could quickly become routine. The weakening of the presidency and our government that would result from such a cycle of factional fighting is precisely what our Founders intended to avoid. Ignoring these risks, dissidents are content to leave the preservation of our system of separate powers to the good faith of prosecutors.”

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