Wherever Richard Nixon is today, I have no doubt he is smiling up at the Supreme Court. Just short of fifty years after he resigned from the White House, the nation’s highest court has come around to Nixon’s view that if the president does something it is by definition “not illegal.”
In May 1977 Nixon articulated this view during an interview conducted by the British journalist David Frost. Talking about the shady things Nixon had done to quash anti-Vietnam War protests and to covertly surveil activists, Frost asked Nixon, “What you are saying is there are certain situations… where the president can decide that it’s in the best interest of the nation or something and do something illegal?”
With a gentle tilt of his head, Nixon responded, “When the president does it, that means it’s not illegal.”
Nixon’s brazen assertion that the president is above the law, or rather that presidential action defines what is or is not law, has long been regarded as an outlier in American history. But no more.
Monday’s Supreme Court’s decision on the immunity claim brought by former Pres. Donald Trump in the hope of shielding himself from criminal prosecution is nothing short of stunning. It signals that Nixon was something of a prophet and that his outlier view is now the law of the land.
Not only is the result stunning, so is the reasoning that produced it.
If anyone wades through its dense legal prose, Chief Justice Roberts’ majority opinion, written to express the view of the six conservative justices on the court, they should come away alarmed at the lengths to which those justices were willing to go to protect the twice impeached and now convicted felon who once sat in the Oval Office.
A Court supposedly dedicated to “originalism” offers only history lite. A Court that denigrates balancing tests embraced them to help Trump. At the same time, it almost entirely ignored some of the interests that needed to be balanced.
And there’s more.
The Court articulated a view of presidential power that guts our system of checks and balances. Roberts’s opinion was entirely focused on the remote possibility that criminal liability might get in the way of an energetic and expansive use of that power. It largely ignores the context that brought this case before it. Given what happened during the oral argument, when the conservative majority piled one far-fetched scenario on another, we should not have been surprised that this court ignored the reality before it.
Instead of focusing on what Trump did and the threat that it posed to the survival of our constitutional republic, Roberts let his imagination free and conjured every possible hypothetical impediment that a president subject to the criminal law might encounter.
The Supreme Court’s decision means that a president who is obligated to ensure that the law is faithfully executed need not be bound by the very laws that he is duty-bound to enforce. So long as the president is discharging their official responsibilities they are, from this point forward, freed from the obligation to obey the criminal law.
And, if that were not enough, Roberts made sure that Trump would not be brought to the bar of justice before the election. In place after place in his opinion he refers to the complexity of the findings that now will have to be made by courts where Trump is scheduled to be tried Roberts’s opinion sets up a lawyer’s paradise, ensuring months and years of litigation in the Trump cases.
And, if Nixon is smiling, Alexander Hamilton and those with whom he worked to craft the Constitution are rolling over in their graves. Their desire to set up a government in which powers would be limited so that they would not be abused suffered a grave setback at the hands of the Roberts court.
The president, Roberts wrote, “occupies a unique position in the Constitutional scheme.” Then, misreading the design and purpose of the Constitution itself, he argues that the Framers “sought to encourage energetic, vigorous, decisive and speedy execution of the laws’ by placing in the hands of a single, constitutionally indispensable individual the ultimate authority that, in many in respect to the other branches, the Constitution divides among many.”
The Chief Justice claims that there “‘exists the greatest public interest’ in providing the president with ‘the maximum ability to deal fearlessly and impartially with the duties of his office…. (T)he nature of presidential power,” Roberts explains, “requires that a former president have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the president’s exercise of his core constitutional powers, this immunity must be absolute.”
That immunity would ensure that “when the president exercised… authority, he may act even when the measures he takes are ‘incompatible with the expressed or implied will of the Congress’…. And the courts have ‘no power to control the president’s discretion when the acts pursuant to the powers vested exclusively in him by the Constitution.’”
Justice Ketanji Brown Jackson used her dissent to point out exactly what that kind of immunity means. “Put simply,” she said, “immunity is ‘exemption’ from the duties and liabilities imposed by law…. In its purest form, the concept of immunity boils down to a maxim—' the King can do no wrong’— a notion that was firmly ‘rejected at the birth of our republic.’”
Surely Roberts and his conservative brethren understand the meaning of immunity. That is why it seems disingenuous for Roberts to insist that the Court’s decision does not mean that the president is above the law.
Or maybe Roberts means that the Constitution authorizes the president to do whatever he sees fit in the exercise of his official duties, even if that means violating the law and committing crimes.
Recall what Trump said about the nature of presidential power. In his view, Article II of the Constitution means, as the former president put it, “I have the right to do whatever I want as president.”
Let’s think for a minute about what Trump might do if he is returned to the Oval Office. One of the things that he has talked openly about is weaponizing the Department of Justice and prosecuting his political opponents, including the current president, Joe Biden.
I couldn’t help but think about that as I read the examples that Roberts gives of the “core powers” of the president, where the president’s immunity will henceforth be absolute.
On page 19 of his opinion, he points out that Jack Smith’s indictment of Trump contains allegations regarding his effort to get the Justice Department to intervene and support his effort to overturn the results of the election he lost four years ago. Those allegations “plainly implicate Trump’s ‘conclusive and preclusive’ authority. ‘[I] investigation and prosecution of crimes is a quintessentially executive function.’”
Then, as if to drive the point home and please the former president, Roberts states that the president has “‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute… “ Trump is therefore “absolutely immune from prosecution” for his effort to get the Justice Department to help in his scheme to stay in office.
Imagine that Trump is returned to the White House eager to launch vindictive or selective prosecutions of journalists, prosecutors who indicted him, judges who presided over his trials, and Biden administration officials. He is now emboldened by a Supreme Court decision that says he would be absolutely immune even if he violated the law in launching them.
Justice Sonia Sotomayor aptly describes the world that Roberts has created. “A president’s use of any official power for any purpose, even the most corrupt, is immune from prosecution.” And as she notes, “The Constitution’s text contains no provision for immunity from criminal prosecution for former presidents.”
Even Hamilton, ever the advocate of energy in the executive, knew the difference between the British King and the kind of American president whose authority he sought to defend. As Sotomayor notes, Hamilton hoped that while the power of the king was “sacred and inviolable,” the “’ president of the United States… Would be amenable to personal punishment in disgrace.’”
She is right to say that Roberts’s opinion shows that “history matters to this court only when it is convenient” and criticize the court for ignoring the public interest in having a president bound to follow the law.
So, where are we left? If we needed more proof, the immunity decision is a reminder that while the Supreme Court may be able to resurrect Richard Nixon, it will not save the Republic. That task is up to all of us.
Maybe, just maybe, the Court’s decision will remind the voters of why it is important not to let the now-expanded powers of the president fall into the hands of someone who has already announced his intention to be a dictator on day one.
