The U.S. Supreme Court did everything it could to delay its fateful and dangerous decision on presidential immunity, ignoring a December request from Special Counsel Jack Smith for a quick resolution. And then when the case came up the normal way, the conservative majority justices took their time, dragging it out. That only made worse the bad decision granting too much power to Oval Office occupants and helping Donald Trump avoid responsibility for his actions.
The final product, by Chief Justice John Roberts, in a 6-3 split along partisan lines, did not say the president is a king, per se, but appointed itself arbiter of where their power ends. A stronger and less accountable executive means weaker legislative and judicial branches, upsetting the balance. Apart from the current or future prosecution of Trump, this could be a very ominous decision for the country.
Roberts splits up presidential acts by core, official and unofficial, with only the former — those functions derived directly from the Constitution — having absolute immunity from prosecution or court review. The middle type, encompassing all other functions done as part of the office, are merely “presumptively” immune, while the latter are not at all.
Regarding Trump, it likely means that his efforts to corrupt the Department of Justice for his own personal political ends after the 2020 election cannot be prosecuted, as the president ultimately runs DOJ. As for his trying to get Vice President Mike Pence to toss out the electoral votes of certain states on Jan. 6, that is the cloudier middle ground if it is a crime. And finally, on Trump’s decidedly non-federal acts, like calling Georgia Secretary of State Brad Raffensperger to say “I just want to find, uh, 11,780 votes, which is one more than we have” is not an official act and for which Trump can face trial.
It is a bit difficult to parse the full weight and significant of Roberts’ ruling due to its tangle of technical points, but — much like other recent rulings including the striking down of a federal ban on bump stocks — the technicality is a bit of a misdirection that can obscure the breadth of what the court is really doing here.
For one, the Article II core functions of the presidency can be read quite expansively. One of those tasks is to “take Care that the Laws be faithfully executed,” which could be stretched to some pretty antidemocratic behavior; that’s not our thinking, that’s straight out of Roberts’ opinion, which notes that under this principle, the president could discuss and potentially direct ongoing investigations with the attorney general, undermining prosecutorial independence.
Whether something is official or not, and whether a prosecution could potentially overcome the presumption of immunity, will be determined by the courts of course. The justices once again grant themselves more power, and leave crucial questions hazy and up to their discretion.
That much is made clear in the sharp dissents from Justices Sonia Sotomayor and Ketanji Brown Jackson. The former gets into the history of how this is not what anyone understood the framers to provide for and lays out the many ambiguities inherent in this ruling, ambiguities that the courts are giving themselves once again the power to unilaterally resolve.
Both drive home the point with some hypotheticals; “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,” writes Sotomayor. Jackson mused about whether the president’s absolute power to appoint and remove executive officials would extend to a president doing so by poisoning his attorney general.
Some of these are barely hypotheticals. There was reporting that Trump did indeed consider selling pardons, and while his coup attempt wasn’t strictly military in nature, it did involve some of his arguably official functions. While the majority and its defenders hand-wave all this away as wild speculation, the idea that these are even questions not clearly resolved by this ruling is a truly bizarre place to find ourselves in as a country.
Even with the new limitations now imposed by the high court, there still remains plenty in Special Counsel Smith’s election interference case to hold Trump to account for his non-official acts and should those charges meet the test, Trump must stand trial, as Justice Amy Coney Barrett writes. So get to it, Mr. Special Counsel and Judge Tanya Chutkan.
Unaffected by this is the classified documents case which involves actions only taken after Trump’s presidency, and will go forward, provided Trump flunky Judge Aileen Cannon actually allows it. But with November looming, there’s a good chance that neither of Smith’s cases, election interference and documents, will be resolved before the public cast their ballots, which is a national disservice.
