Elections have consequences. That true old cliche has seldom manifested itself as starkly as it did with Monday’s Supreme Court ruling regarding presidential immunity. On a familiar 6-3 vote, with half of that majority appointed by former President Donald Trump, the court upended another old cliche — the one about American presidents not being above the law.
Trump, the majority ruled, is immune from criminal prosecution for much, if not most, of what he did while in office, potentially including his plot to overthrow the 2020 election so he could remain in power after being voted out.
The ruling makes it far less likely Trump will be criminally convicted for his frontal attack on democracy while he was president. And it raises the stakes for this year’s presidential election immensely, with the possibility of a second Trump presidency even more emboldened to flout the law than the first one was.
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In fact, all future presidents are now effectively empowered to break the law at whim without fear of later prosecution, as long as the lawbreaking is in some way connected to their official duties.
Ruling on Trump’s Washington, D.C., election-interference criminal case, the court’s majority didn’t outright confirm Trump’s ludicrous claim of absolute blanket immunity from prosecution for all actions taken while he was in office. But they came close enough that it could ultimately have the same effect.
The majority opinion, written by Chief Justice John Roberts, establishes for the first time that former presidents have total immunity from criminal prosecution stemming from “official acts†carried out while in office.
Ex-presidents can still be prosecuted for “unofficial†criminal acts undertaken while they were office, the court ruled. But even any parts of those acts that involved a president’s “core constitutional powers†carries a presumption of immunity from prosecution after leaving office.
There’s nothing like that line of thinking in the Constitution and no indication the framers intended presidents to possess monarch-like powers putting them outside the reach of law — quite the opposite, in fact. The conservative justices’ fealty to their fabricated principle of “originalism†is thus proven, not for the first time, to be entirely situational.
What exactly constitutes “official†as opposed to “unofficial†acts of a president? The opinion itself acknowledges the ambiguity of that issue, leaving it partly to courts to make the distinction in individual cases.
However, the opinion contains enough specificity to make clear that the definition of “official†acts is to be wide-ranging.
For example, part of the evidence in the election-interference case against Trump is that he pressured Vice President Mike Pence to refuse to certify the election results as part of his scheme to overthrow the voters’ will.
Is that an “official act� Yes, says the court majority.
“Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct,†wrote Roberts. Therefore, “Trump is at least presumptively immune from prosecution for such conduct.â€
The implications of the ruling go far beyond the case at hand. Armed with the court’s opinion, Trump’s legal team Tuesday won postponement of his pending sentencing in his separate hush-money conviction in New York so they can file a motion asking that the conviction be thrown out based on the new ruling.
How could that be, given that the payoff to a porn star to keep quiet about their affair was made before Trump even took office? Because some of the evidence of his fraudulent business records to hide that payoff involved his communications with others after he was sworn in as president. And virtually any such communications, the court’s ruling indicates, could qualify for “official†immunity.
The majority’s ruling is appalling but not all that surprising coming from this politically compromised court. Two of the justices have clear conflicts of interest in even hearing the case: Samuel Alito’s wife has publicly displayed flags associated with the Jan. 6, 2021, Trumpian mob that attacked the Capitol. And Clarence Thomas’ wife was an active participant in attempts by Trump’s inner circle to corruptly overturn the 2020 election results — the central issue in this very case before the court.
In the suitably blistering dissent, Justices Sonia Sotomayor, Ketanji Brown Jackson and Elena Kagan highlighted the dangerous absurdity of the majority’s opinion. The ruling, wrote Sotomayor, will empower any future president who “wishes to place his own interests, his own political survival or his own financial gain above the interests of the nation.â€
“(A president) 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.â€
“In every use of official power,†she wrote, “the President is now a king above the law.â€
Elections have consequences. The composition of this ideologically brazen court is a direct consequence of Trump’s 2016 election to the presidency. With this ruling, the consequences of a second Trump administration would almost certainly be even more dire.