In its extraordinarily disturbing decision earlier this week granting presidents wide-ranging immunity from criminal prosecution, the US supreme court dramatically mis-weighed a competing set of risks to our constitutional democracy.
On the one side of the scale, the court placed the possibility that a future rogue prosecutor will seek to settle political scores by indicting a former president for “insufficiently enforcing … environmental laws”.
On the other side of the scale, we can place the possibility that a former president, having previously been charged with subverting the peaceful succession of power, returns to the White House, where he demands the prosecution of all those who tried to hold him to account.
Or consider a related set of risks. On one side, the court imagines a president who is so fearful of the theoretical prospect of being prosecuted after leaving office that he fails to perform his duties in a “vigorous” and “energetic” manner. “Enfeebled” by the threat of future prosecution, the president is “chilled from taking the ‘bold and unhesitating action’ required of an independent Executive”.
On the other side, we can imagine that a former president, having already successfully dodged any legal reckoning for his attempt to subvert the results of fair democratic election, now finds himself back in the White House and, cloaked with a blanket of immunity for all his “official actions”, grossly abuses that power.
What are we to make of the fact that the court has clearly perceived the risks posed by a rogue prosecutor to far outweigh those posed by a rogue president – this notwithstanding the fact the dangers posed by the former are entirely speculative while those posed by the latter are all too real? In defense of the six-person majority one might argue that the court must fashion principles that apply generally to future cases – it cannot shape a remedy to address the particular threat posed by Donald Trump.
Only that’s not true. The court could have limited itself to the matter at hand – whether Trump enjoyed immunity for his alleged acts of election interference as charged in the federal indictment. It could have held off to another day the larger question or scope of presidential immunity. And it could have reached this narrow decision months ago, thus affording the American people a trial court’s judgment concerning Trump’s most serious attack on American constitutional democracy, prior to the 2024 election.
A simpler, and less savory, explanation of the court’s decision is that it’s stocked with Trump supporters. Three members of the six-person majority owe their positions on the court directly to Trump and they are not even the justices most obviously sympathetic to the former president. (That would be Clarence Thomas, the rigid ideologue with a Maga wife, and Samuel Alito, whose understanding of the Constitution seems driven by a prickly sense of grievance – who also evidently has a Maga wife.)
And while I have a hard time believing – call me naive – that Chief Justice Roberts isn’t keenly aware of the dangers posed by Trump, his majority opinion is astonishingly purblind to those dangers. Take, for example, the court’s conclusion that because the constitution vests the president with the “core” duty to “take Care that the Laws be faithfully executed”, Trump enjoys absolute immunity for his dealings with the justice department – including his appeal to justice department officials, after Biden’s 2020 victory, to “just say that the election was corrupt + leave the rest to me … ”
The court’s logic is oxymoronic: because the constitution demands the president faithfully execute the law, he is immunized for his attempt to corrupt and subvert that very law.
Let’s also bear in mind that hours before the court handed down its tardy decision, Trump reposted messages on Truth Social, his personal social media platform, calling for the prosecution and imprisonment of his declared political enemies. Among those targeted were the former representative Liz Cheney (“guilty of treason” – a capital offense), the former vice-president Mike Pence, senators Chuck Schumer and Mitch McConnell, representatives Adam Schiff and Jamie Raskin, the vice-president Kamala Harris, and president Joe Biden.
In his presidential campaign, Trump has been remarkably vague about his policy goals, but has openly and repeatedly declared his intention to use the justice department as a tool of personal vengeance. Now he can do so with impunity. At the very least, the court’s decision might shield Biden from Trump’s wrath – the others are all fair game.
By way of trying to settle the nation’s nerves, the court reminds us that presidential immunity does not extend to private acts. Never mind that the court fails to offer a bright-line test between official and private acts while embracing a capacious understanding of the “official”. Still, we may rightfully ask what worries us more: the prospect that the president will rob a convenience store or that he will grossly abuse the very office that makes him the most powerful human on the planet?
Back in the day of George W Bush’s misbegotten “war on terror”, John Yoo, at the time a lawyer in the office of legal counsel, wrote a notorious memo opining that the federal law criminalizing torture would be unconstitutional if applied to the president in times of war. This ominous claim led the senator Patrick Leahy to ask the then attorney general Alberto Gonzales, during a congressional hearing, whether the president could legally order genocide. At the time, Gonzales refused to answer, dismissing the question as hypothetical. Now the supreme court has offered a clear and shocking answer to the senator’s question.
Lawrence Douglas is the author, most recently, of Will He Go? Trump and the Looming Election Meltdown in 2020. He is a contributing opinion writer for the Guardian US and teaches at Amherst College
