The Supreme Court Gives a Free Pass to Trump and Future Presidents
In a stunning finale to its term on Monday morning, the Supreme Court delivered a gift of inestimable worth to Donald Trump and all future presidents who intend to violate the law and their oaths to the Constitution. In a 6-to-3 ruling, the court’s conservative majority said that official acts that are central to the presidency are given “absolute immunity” from prosecution. Other acts, even those that reach to the outer edge of a president’s official duties, are “presumptively immune,” the court said, making them much harder to be prosecuted.
The immediate effect of the decision — one of the most consequential ever produced by the court on the subject of presidential powers and constitutional government — was to delay indefinitely the prosecution of Mr. Trump for his attempt to overturn the 2020 election. The vote this fall will now almost certainly move forward with no legal accountability for that act. But the long-term danger to the Constitution and the American government is even more serious, particularly given the real possibility that Mr. Trump, whose recent criminal conviction in New York is only the latest demonstration of his contempt for legal boundaries, could be returned to office in just a few months.
As of Monday, the bedrock principle that no one is above the law has been set aside. In the very week that the nation celebrates its founding, the court undermined the reason for the American Revolution by giving presidents what one dissenting justice called a “law-free zone” in which to act, taking a step toward restoring the monarchy that the Declaration of Independence rejected. Presidents can still be impeached for their crimes in office, but it is hard to see how they can ever be prosecuted. They can take once-unimaginable actions, like encouraging an insurrection at the U.S. Capitol, with no fear of later going to jail or being held legally accountable.
As Justice Sonia Sotomayor wrote in a blistering dissent along with the other two liberal justices, the ruling creates a series of “nightmare scenarios” for what a president is now allowed to do. “Orders the Navy’s SEAL Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”
She added: “The relationship between the president and the people he serves has shifted irrevocably. In every use of official power, the president is now a king above the law.”
The decision, written by Chief Justice John Roberts, significantly raises the stakes of the coming election. Not only does it make clear the importance of a president’s appointments to the Supreme Court — all three of Mr. Trump’s nominees voted to give him the immunity he sought — but it also hands Mr. Trump carte blanche to act even more determinedly in a second term than he did in his first. The chief justice explicitly said that Mr. Trump’s speech and tweets on Jan. 6, 2021, urging his supporters to go to the Capitol and disrupt the certification of the vote, could well be protected as a standard use of the presidential bully pulpit. The court sent the case back to the district court to make factual determinations on that and other questions, a process that, including appeals, will take months if not longer.
