The supreme court’s ruling on presidential immunity combines a tectonic constitutional shift and immediate political repercussions to devastating effect. It allows one man to stand above the law. It slows and appears to gut the 2020 election-subversion case against Donald Trump, though it does not necessarily end it. No one believes a trial can be held before November’s election, although court hearings could still offer a detailed airing of the evidence this autumn.
There could hardly have been a better week for Mr Trump, who saw his rival stumble so badly in last Thursday’s debate that Joe Biden faces growing calls to quit four months from election day. Anyone who doubts how consequential a second Trump administration term would be for the United States and the world need only look to the supreme court, now ruled by a conservative supermajority thanks to three Trump-appointed justices.
Monday’s majority ruling, penned by Chief Justice John Roberts, is a disingenuous, bloodless discussion which pompously warns that “we cannot afford to fixate exclusively, or even primarily, on present exigencies”. The minority opinion, written by Justice Sonia Sotomayor, is screaming to the people to wake up: the city on a hill is on fire. A twice-impeached convicted felon who attempted to overturn the people’s verdict, reveres authoritarians and pledges to be a dictator (only “on day one”) could soon be re-elected. This is not about exigencies; this is an emergency.
Justice Sotomayor outlined the new limits for a president: “Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organises a military coup to hold on to power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune … In every use of official power, the president is now a king above the law.”
The court’s ruling grants complete immunity from criminal prosecution to core presidential powers. But it also grants presumptive immunity to other “official acts” – and these are extraordinarily widely drawn. Pressuring Mike Pence not to certify the 2020 election results would probably enjoy immunity, Chief Justice Roberts writes, because if the president and vice-president are discussing official duties, this is official conduct; and presiding over the results is a constitutional responsibility of the vice-president.
The bar for overturning presumption looks sky-high, as Justice Sotomayor notes – doing so must pose no danger of intrusion whatsoever on presidential authority. The president’s motives cannot be examined. Nor can official acts be used in criminal cases relating to unofficial acts. The resulting scope is so great that any politician or official would surely balk at granting it to the other side – unless they were certain they could hold on to power indefinitely.
This ruling will almost certainly, as it should, further lower declining support for a court now mired in scandal, thanks to the Republican-appointed Clarence Thomas and Samuel Alito. Other majority rulings in recent days have delivered a major blow to the regulatory powers of federal agencies and, extraordinarily, said that officials can accept cash or gifts from people they have assisted: they only count as bribes if given before the favour. This is a court for the rich and powerful, and it is making them more so. The founders intended the supreme court to be part of the solution to the tyranny of European kings. Mr Trump, and the court’s conservative justices, have made it part of the problem.