This isn’t theoretical; in writing the majority opinion, Chief Justice John G. Roberts Jr. offered this idea explicitly. It is one reason observers of threats to democracy saw a result like that in Trump v. U.S. as so dangerous. Yet in his opinion, Roberts gets that threat backward.
“The President is not above the law,” the opinion states. “But” — and it’s a very big but — “under our system of separated powers, the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts.”
Roberts dismisses criticisms offered in the dissents written by Justices Sonia Sotomayor and Ketanji Brown Jackson. The dissents, he writes, “strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today.”
What’s more, he argues at a later point, Sotomayor and Jackson offer no constitutional basis for rejecting the idea that a president should have such immunity.
“Conspicuously absent is mention of the fact that since the founding, no President has ever faced criminal charges — let alone for his conduct in office,” he notes. “And accordingly no court has ever been faced with the question of a President’s immunity from prosecution.” He offers a slippery slope: “Without immunity, such types of prosecutions” — i.e., centrally political ones — “of ex-Presidents could quickly become routine.” The result would be an “enfeebling of the Presidency and our Government.”
These are hard to reconcile: If this hasn’t happened before, why would they happen routinely in the future? Solely because Trump pressed the issue, seeking protection against prosecutions rooted in his efforts to retain power after losing in 2020? In essence, the majority opinion accepts an argument that the exceptional occurrence here was the prosecution of Trump, not Trump’s actions that led to the prosecution.
This was a distinction elevated by special counsel Jack Smith in an April filing with the court.
“This prosecution is a historical first not because of any assumption about immunity but instead because of the singular gravity of the alleged conduct,” he wrote. Trump did something that no other president had done, crossing an uncrossed line, and criminal prosecution was a result.
The risk the Supreme Court majority identifies and seeks to address is that others might be prosecuted, not that others — or reelected presidents — might feel confident in ignoring the law. Instead of addressing what’s happening, they excuse it by theorizing about what might.
Roberts offers a president targeting his opponents as an example of something that’s protected: “The President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to ‘take Care that the Laws be faithfully executed.’” With that sentence, Roberts apparently intended to excise one of the charges that Trump faces in his D.C. indictment. Trump allies may read that line as a subtle excoriation of what they perceive President Biden to have done. But a Donald Trump who takes office on Jan. 20, 2025, will read it as carte blanche.
Sotomayor’s dissent is particularly sharp in criticizing the majority opinion, in keeping with her recent public comments about dire court opinions yet to come.
“Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency,” her dissent begins. “It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.”
She offers examples when — contrary to Roberts’s suggestion that this situation is novel — the question of presidential criminality has emerged previously. Past special counsels have considered whether criminal charges might be brought, for example. Richard M. Nixon accepted a pardon from President Gerald Ford that “rested on the understanding that the former President faced potential criminal liability.” The result after Watergate was not a cascade of partisan attempts at prosecution.
“The majority’s main concern could be that Presidents will be deterred from taking necessary and lawful action by the fear that their successors might pin them with a baseless criminal prosecution — a prosecution that would almost certainly be doomed to fail, if it even made it out of the starting gate,” Sotomayor writes, having articulated (as she has in the past) the system’s checks against unfair prosecution. “The Court should not have so little faith in this Nation’s Presidents.”
But Sotomayor clearly has her own concerns about future presidents, and her warnings to that end are repeatedly pointed. The decision “now ‘lies about like a loaded weapon’ for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation,” she writes. At another point, she states that “in every use of official power, the President is now a king above the law.”
This is the outcome most concerning to political scientists and other experts when surveyed earlier this year. Presented with several ways the legal system might put the democratic system at risk, a finding of presidential immunity was the one that experts viewed as the most obvious and dangerous threat.
In the majority opinion, Roberts attempts to separate the decision from Trump. (“Unlike the political branches and the public at large,” he writes, “we cannot afford to fixate exclusively, or even primarily, on present exigencies.”) But the decision is inextricable from Trump, in the immediate sense that it all but ensures that Trump won’t face prosecution for his efforts to overturn the 2020 election before November’s election and in the sense that it offers Trump clear guidelines on the power he might assume should he win.
It is further a decision that comes in the moment that allowed Trump to attain power. One reason Watergate didn’t trigger a partisan backlash was that partisanship was not as toxic and divided then as it is now. And, again, a reason that no president has previously been criminally charged with trying to retain power despite losing an election is that no president has previously engaged in such an effort to retain power despite losing an election.
In her dissent, Jackson notes the ways in which the majority’s decision will slot into the system as it exists.
“A majority of this Court, applying an indeterminate test, will pick and choose which laws apply to which Presidents,” she writes, “by labeling his various allegedly criminal acts as ‘core,’ ‘official,’ or ‘manifestly or palpably’ beyond the President’s authority.” There’s no standard offered in determining what constitutes an official act. It is — like so many other things in this court’s estimation — something that will be decided by the courts and, ultimately, should they choose, by the Supreme Court.
A president who engages in even extreme actions in the guise of his official duties faces obvious sanction. If a president “orders the Navy’s Seal Team 6 to assassinate a political rival,” to use one of Sotomayor’s examples, he is immune from prosecution. He might be impeached, but as Trump showed more than once, removal from office is unlikely barring a dramatic shift in the composition of the Senate.
Roberts is right that the question was triggered now because of exceptional circumstances. He seems to be wrong about those circumstances. And those circumstances may arise again in about seven months.
“Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law,” Sotomayor’s opinion concludes. “Moving forward, however, all former Presidents will be cloaked in such immunity.”
“With fear for our democracy,” she writes, “I dissent.”
