The Roberts Court Boosts Trump’s Attack on Constitutional Democracy

The overreaching, absurd, un-American decision granting ex-presidents a large degree of immunity is an exercise in power, not law

In the July 1 immunity decision, the Supreme Court majority of six Republican-appointed justices went beyond law into baser questions of power, dramatically reordering the U.S. government’s checks and balances in favor of the president. It is a deeply un-American ruling, violating an ethos that goes back to the Declaration of Independence. George Washington limited his own presidency, John Adams advocated “a government of laws, and not of men,” Theodore Roosevelt famously said “no man is above the law.” 

When I say the Court went beyond law, I don’t mean that I disagree with their interpretation of any legal text. I mean their immunity grant isn’t based in any. The Constitution does not address it either way. Going against a core principle of conservative philosophy, the supposedly conservative majority treated these ambiguous areas with the opposite of judicial modesty.

No U.S. law lays out the differences between “official” and “unofficial” presidential acts. The judiciary made that up. 

A 1982 case, Nixon v. Fitzgerald, ruled that presidents can’t be held personally liable for financial damages in civil court for actions extending to the “outer perimeter” of their official duties. But the 5-4 majority in that case specified a president could potentially face criminal charges regarding actions in office.

American officials have acted as if that’s true, both before and since. In 1974, Gerald Ford pardoned Richard Nixon for crimes associated with the Watergate scandal. In 2001, Bill Clinton cut a deal to avoid indictment for perjury and obstruction of justice associated with the Monica Lewinsky scandal, accepting a five-year suspension of his law license. In 2021, voting against impeaching Trump for inciting the January 6 attack, Republican Senate leader Mitch McConnell argued that the proper venue to hold Trump accountable was criminal court.

The Supreme Court just undid all that, legislating from the bench that clearly official acts are immune from post-presidency criminal prosecution, and anything that might be an official act should be presumed immune.

The Justices did say a president could be prosecuted for unofficial acts, but didn’t explain how to identify an unofficial act nor give any examples. This contrasts with multiple specific examples of official acts that get presumptive or absolute immunity, indicating the majority’s priorities.

Conceptually, an official-unofficial distinction makes sense. The president shouldn’t be prosecuted for doing normal president things, including decisions within his legal authority that political opponents oppose. But the Court’s conception of official acts is so expansive that it encompasses nearly all of a president’s behavior, including key elements of Trump’s coup attempt.

One illustrative example: The decision notes that presiding over Congressional proceedings on January 6 is part of the vice president’s official duties (which is indisputably true), and declares that, “Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct.” From there, the Justices leap to the conclusion that, because Trump pressuring Pence to unconstitutionally claim the power to reject Electoral College votes involved discussion of Pence’s oversight of the proceedings, “Trump is at least presumptively immune from prosecution for such conduct.”

The Supreme Court sent questions about the officialness of various acts back to the District Court to adjudicate, and prosecutors have an opportunity to argue immunity shouldn’t apply. But the Justices did not tell the lower court to identify any unofficial acts that could be eligible for charges. Rather, the instructions say to investigate if any prosecution regarding Trump’s pressure on Pence “would pose any dangers of intrusion on the authority and functions of the Executive Branch.”

If an ex-president is convicted for crimes he committed in office, that will discourage current and future presidents from committing crimes in office, yes. That is how criminal law is supposed to work. Conviction and punishment deters similar lawbreaking in the future. But the Justices decided a president refraining from an action out of concern that it’s illegal is worse than a president breaking the law.

This is entirely a judgment call, with no basis in the Constitution or statute. They’re not doing any textualist analysis, nor “calling balls and strikes.” The Justices took it upon themselves to expand executive power and protect future presidents from hypothetical prosecutions.

So they invented new hurdles for charging a former president for actions in office. And if a prosecution manages to clear those hurdles, convincing a federal court that an alleged crime involved unofficial actions so a trial can move forward, the Supreme Court can hear an appeal and arbitrarily say “nah, we don’t think that’s unofficial enough.”

Such judicial overreach and warped prioritization are bad in the abstract, but it’s especially egregious in light of current reality.

An ex-president who tried to overthrow the Constitution when he lost the last election, the first jury-convicted felon ever nominated by a major American political party, is attacking the legitimacy of the justice system and trying to put himself above the law. 

As laid out by the House January 6 Committee, there is considerable evidence Trump committed serious crimes as he attempted to cling to power, including conspiracy to defraud the United States. That cannot possibly be an official act, at least not entirely. If it were, every president who loses reelection will be entitled to break the law and abuse power to stay in office. Which is absurd.

Like any accused criminal, Trump is entitled to defend himself in court, and maybe prosecutors will fail to convince a jury of his guilt beyond a reasonable doubt. But even though multiple grand juries in multiple districts determined there’s enough evidence to issue criminal indictments, the Supreme Court decided Donald Trump is special and those standards don’t apply to him.

Technically, they decided the president is special—a lot more special than the Founders thought—but did so knowing that current president Joe Biden won’t do anything close to Trump’s lawbreaking. And knowing that the only American political party trying to empower a criminal is the one with ideological and policy goals the six Justices in the majority personally share.

They waited until the last possible day to release the decision, delaying the federal trial for crimes related to Trump’s coup attempt. The ambiguities of official and unofficial acts left for lower courts to adjudicate will delay it further still, possibly years. This facilitates Trump’s “legal” strategy of not really defending himself on the merits—because he did it—but instead stringing things out long enough to win the presidency, corrupt the Justice Department, and shut down the cases. 

There’s no way Supreme Court Justices aren’t smart enough to see this, or too cloistered to have never heard someone discuss it.

The justice system should operate on a legal calendar, not an electoral one, but the Justices could have ruled quickly, as they did when deciding that the 14th Amendment’s prohibition on insurrectionists holding elected office doesn’t apply to Trump. They could have limited themselves to the specifics of this case. They could have determined which prosecutions concern unofficial acts and can move forward, even while labeling some official and therefore off limits. They chose not to.

The Justices greatly expanded the concept of presidential immunity, and almost certainly know it helps Trump’s quest to put himself above the law. That means they either want it to succeed—Samuel Alito is the safest bet for that—or think it doesn’t matter.

The most generous possible explanation is an grievous, highly consequential case of Lawyer Brain, ignoring real world circumstances in favor of esotera and unlikely hypotheticals. But the practical impact of this Supreme Court decision matters more than most in history.

For example, as commander in chief, the president has the Constitutional authority to order the military to use force, which is an official act. If telling Pence to break the law on Jan. 6 involved official acts and therefore should be presumed immune from criminal prosecution, and telling DOJ to manufacture fraudulent evidence was a discussion between executive branch officials and therefore covered by absolute immunity, it logically follows that any military order, including an illegal one, is protected by immunity as well.

As president, Trump not only pardoned his personal criminal associates, such as Roger Stone and Paul Manafort, he also pardoned literal war criminals. One’s actions were so bad that some of his fellow Navy SEALs testified against him, which almost never happens.

Military officers are supposed to refuse to carry out illegal orders, but when a president acting under the presumption of immunity is telling them to do it, and promising a pardon if they get court-martialed later, what is stopping them beyond their own conscience and willingness to withstand the pressure? Some will refuse illegal orders, but some will probably worry about accusations of insubordination and go along, and some will even be eager to carry them out.    

That’s one of the awful possibilities the Supreme Court just made more likely. All Trump would need is a pretext, no matter how false nor conducted in bad faith. You know, the sort of lies he does all the time, without an ounce of shame. 

The ruling says Trump’s efforts to get the Justice Department to falsify evidence cannot be part of a prosecution, not even as evidence of intent regarding Trump’s unofficial acts. It does not matter if “the requested investigations were shams or proposed for an improper purpose.” The reason, the majority asserts, is that “Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.”

That logic makes conspiracy charges nearly impossible to prosecute. Conviction requires proving advance planning with the intent to carry out illegal acts, and the Supreme Court says discussions where Trump and other members of the executive branch plotted their conspiracy are off limits.

The ruling sure looks like permission for Trump to end any cases against himself if he becomes president again, which would solidify his status as above the law.

That’s extremely concerning, no question, but it ain’t over yet.

The 2024 election is effectively an up-or-down vote on Constitutional democracy. If Trump loses, the question of what abuses the Supreme Court allows him to do in office becomes moot, and cases will eventually finish litigating the rules and start trying the crimes. The American people asserting their support for the Constitution in the face of such a threat will invigorate pro-democracy forces, and provide opportunities for renewal.

But we have to get there first, which won’t be easy. The institutions of American democracy are hanging by a thread, and the country’s highest court decided to fray it.