Ex-justice department officials and scholars are raising alarms about the US supreme court’s decision to grant absolute immunity to presidents from criminal prosecution for their “official acts”, warning it puts them above the law and will embolden Donald Trump’s authoritarian streak should he win the presidency again.
The court’s six to three conservative majority decision on 1 July is fueling criticism for its radical enhancement of presidential powers and undercutting parts of the four count federal indictment of Trump over his 2020 election subversion drive.
Chief Justice John Roberts’ majority opinion in Trump v United States says a president is “absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority”, including broadly defined “official acts”, but not for “unofficial” criminal acts.
Experts say Robert’s expansive view of what constitutes a president’s “official acts”, knocks out at least one count of the four federal election subversion charges Trump is facing involving his aggressive prodding of top DoJ officials to endorse his lies that the election was stolen.
The ruling is drawing sharp rebukes from DoJ alumni, some of whom are amplifying a stinging dissent by Justice Sonia Sotomayor who wrote that the six-three decision makes presidents “kings”, by creating a “law free zone”.
“The decision will embolden Trump and any other ill-minded president,” Paul Rosenzweig a former federal prosecutor, said. “It is hard to see how this decision is consistent with our history.
“We had a revolution to get rid of [the] kingly prerogative and the supreme court just reinstituted it. This emboldens any president to indulge his baser instincts. Secure in their ability to avoid criminal responsibility and confident in the supine nature of Congressional impeachment oversight, they will be willing to push to the edge of permissible conduct and beyond.”
Other DoJ veterans say the court’s ahistorical ruling will have negative repercussions. The warnings also come after Joe Biden this week called for widespread reforms of the court.
“Here they have truly revolutionized the powers of the president to place him above the law – an idea that had been regarded as anathema to our values until now,” Donald Ayer, the ex-deputy attorney general who served in the George HW Bush administration, said.
“It is almost unbelievable now with Trump as a candidate who has specifically promised to violate the law if he’s elected.”
These criticisms are underscored by Roberts’ opinion deeming presidents a “branch of government … unlike anyone else”, and stressing the need to ensure that any future president is able to take “bold actions” as an “energetic, independent executive”.
Further, legal experts say the ruling seemed oblivious to Trump’s dangerous threats that if he’s elected again he would seek “revenge” for the federal and state indictments he faces, which Trump has labeled “witch hunts”, by using the DoJ to prosecute political foes.
In June, Trump posted on his Truth Social platform he would “appoint a real special prosecutor to go after the most corrupt president in the history of the USA, Joe Biden”.
Notably, the decision disallows using evidence from official actions in cases where ex-presidents are prosecuted for strictly private actions. This makes it harder to establish clear motives for some of Trump’s alleged election subversion crimes.
Similarly, the court’s slow walking of its ruling until the last day of its term – after taking about 10 weeks to decide – failed to provide a distinct line between official and private acts.
Now, Tanya Chutkan, the US district court judge, who oversees Trump’s trial on federal election subversion charges that was originally slated to start on 4 March, will have to wrestle with those issues which may wind up again at the supreme court.
Scholars and former DoJ officials say the court’s ruling is radical, disregards precedent and opens the door to new abuses by Trump if he wins in November, or other presidents with authoritarian instincts.
“Our supreme court is dangerously close to saying Donald Trump’s assault on democracy was legal and constitutional,” said Steven Levitsky, a Harvard government professor and co-author of How Democracies Die. “I think it’s one of the most reckless and irresponsible rulings in supreme court history.”
Levitsky stressed the ruling comes “at a time when an explicitly authoritarian figure is ahead in the polls. I don’t think of Roberts and the others as authoritarians. But they can’t be that blind to what they’re doing.”
In comparison, Levitsky noted that “across Europe and Latin America there are courts that have set clear limits on the power of authoritarian-leaning governments”, citing Brazilian courts after the defeat of its authoritarian president Jair Bolsonaro.
Legal scholars, too, see parts of the ruling as especially worrisome.
Daniel Richman, a Columbia law professor and former federal prosecutor, found Roberts’ “reference to the president’s power to control criminal investigations and prosecutions particularly troubling, less for its substance but for its timing”.
“Although since the founding, the president’s power over these matters has been well-established as a formal constitutional matter, the general rule of non-interference has also been well-established and has developed into a strong norm of prosecutorial independence,” he said.
“While president, Trump certainly eroded those norms to target his enemies and protect his friends. Were he to become president again, I suspect he will rely on Roberts’ language to inflict even greater damage. Certainly his constant talk of ‘retribution’ seems to promise that.”
Such concerns didn’t faze Roberts who chided the three minority justices for adopting “a tone of chilling doom that is wholly disproportionate to what the court actually does today”.
Rather than focus on threats posed by Trump’s actions and rhetoric, the Roberts opinion engaged in some tenuous speculation raising the specter that a rogue prosecutor for political reasons might charge an ex-president for “insufficiently enforcing … environmental laws”.
Trump, who appointed three of the six conservative justices, quickly praised the ruling on his Truth Social platform writing: “I’m proud to be an American.”
From a historical perspective, the ruling was blasted by John Dean, the former White House counsel for scandal-tarred Richard Nixon who resigned the presidency in 1974 after the House judiciary committee voted to impeach him for abuse of power and other crimes.
Writing in the Atlantic, Dean said the decision “decriminalizes Nixon’s conduct during the Watergate scandal” and stressed that “Nixon’s activities fit right in the sphere that the Court broadly defines as ‘official’ or ‘outer perimeter’ behavior.”
Looking forward, Sotomayor’s dissent warned the majority ruling “will have disastrous consequences for the Presidency and for our democracy … Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends.”
Ayer too is deeply worried about the fallout from the ruling: “Even more significantly than in the reversal of Roe, the justices here have radically changed the existing law based on their own preferences – so that the president apparently has no criminal accountability for any exercise of his presidential powers, and it is no longer true that no man is above the law.”
