Shealah Craighead
President Donald Trump at the Naval Air Station in Norfolk, Virginia, March 2020.
As nearly everyone living above ground now knows, the U.S. Supreme Court has granted Donald Trump and future Presidents broad immunity for official acts they commit while in office. The Court’s 6-3 majority opinion in United States v. Trump, written by Chief Justice John Roberts, confers “absolute immunity” on Presidents for exercising their “core Constitutional powers,” such as the authority to confer pardons, and “presumptive immunity” for all other acts within the “outer perimeter” of their official duties.
The ruling will effectively delay Trump’s trial on the indictment brought against him by Justice Department Special Counsel Jack Smith until after the November election. In the longer term, the ruling clears the way for the establishment of an imperial presidency that, despite Roberts’ protestations to the contrary, operates above the law. If American democracy somehow survives, the opinion will go down as one of the most regressive in the Supreme Court’s history, taking its place alongside Dredd Scott, Plessy v. Ferguson, and Bush v. Gore.
But as reckless as the ruling is on its face, it is even more dangerous when its depths are plumbed. Here are five truly awful things you may have overlooked about the case on an initial reading:
1. The opinion doesn’t change the definition of federal crimes, but it gives Presidents a license to commit crimes.
The opinion does not change the definition of any federal offense. Nor does the opinion hold, as Richard Nixon remarked in his infamous 1977 interview with British journalist David Frost, that “when the President does it, that means that it’s not illegal.”
“Crimes are still crimes . . . [a]nd criminals are still criminals,” as Quinta Jurecic and Benjamin Wittes noted in a recent Lawfare article. If Trump is reelected and orders Seal Team Six to assassinate a political rival, for example, he would still be breaking the law. He just could not be prosecuted. The immunity granted by the Supreme Court would provide Trump with legal protection from criminal liability and punishment, but it would not otherwise sanitize his conduct.
2. The pardon power opens the door to criminal conspiracies.
While the majority opinion immunizes Presidents for their official acts, it does not directly protect subordinates who carry out their orders. Nonetheless, Trump’s potential henchmen would not be left out in the cold. The opinion recognizes the pardon power as a core constitutional function that is beyond the scope of judicial review. As a result, future presidents will be able to pardon their accomplices, sparing them from any criminal punishments.
Long before John Roberts penned his majority opinion, Trump was aware of the broad reach of the pardon power. In 2019, he reportedly told Customs and Border Patrol Commissioner Kevin McAleenan that he would pardon him if he were sent to jail for illegally blocking asylum seekers from entering the country. At the time, it was unclear if Trump was joking. Now, courtesy of Roberts and the Supreme Court’s ultra-right majority, the only joke is on the American people, who expect their chief executive to “take care” that the laws of the United States are faithfully executed, as the Constitution commands.
3. The opinion guts the Constitution’s impeachment judgment clause.
Roberts’ majority opinion rejected Trump’s outlandish claim that the indictment brought against him must be dismissed because the Constitution’s “Impeachment Judgment Clause” requires that Presidents be convicted of an impeachable offense in a Senate trial as a precondition to being prosecuted criminally in federal court.
What the opinion doesn’t say, however, is that by granting Presidents absolute immunity for exercising their core constitutional powers, Presidents will be forever shielded from criminal prosecution for official acts, whether for treason, bribery, or “other high crimes and misdemeanors.”
As Justice Sonia Sotomayor noted in a blistering dissent:
“The majority ignores . . . that the Impeachment Judgment Clause cuts against its own position. That Clause presumes the availability of criminal process as a backstop by establishing that an official impeached and convicted by the Senate ‘shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law’ . . . . That Clause clearly contemplates that a former President may be subject to criminal prosecution for the same conduct that resulted (or could have resulted) in an impeachment judgment—including conduct such as ‘Bribery.’”
4. As always, Clarence Thomas pushes the envelope.
Not content with joining Roberts’ majority opinion, Justice Clarence Thomas added a concurrence in which he called on his bench-mates to declare the Department of Justice’s special counsel regulations unconstitutional.
The regulations were put into effect by the DOJ in 1999 to fill a void left by Congress’s decision to allow a federal statute for appointing “independent counsels” to expire. The regulations have been upheld by two federal appellate courts—the D.C. Circuit in 2019 with regard to the appointment of Robert Mueller, and the Third Circuit with regard to the appointment of Robert Hur to investigate Hunter Biden. The Supreme Court, however, has yet to review the regulations.
Thomas’s concurrence is seen by some commentators as an open invitation to Federal District Court Judge Aileen Cannon, who is overseeing the Mar-a-Lago documents case against Trump, to overturn the regulations and set up a test case to come before the Supreme Court. Cannon is currently entertaining a motion from Trump’s legal team to do just that. In the meantime, the case remains stalled with no date set for trial.
5. The opinion exposes originalism as a result-oriented sham.
The reactionary supermajority that controls the Supreme Court has embraced originalism—the view that the Constitution should be understood today as it was understood during the founding era—as an article of faith and practice. Proponents of originalism assert that the doctrine limits the subjectivity of judges and acts as a restraint on judicial activism.
Trump v. United States proves once and for all that originalism is a sham. Nowhere does the text of the Constitution provide for Presidential immunity from criminal prosecution. Nor does a faithful reading of the seminal treatises of the founding era lead to such an outrageous conclusion.
In the Federalist Papers, Alexander Hamilton wrote that Presidents in the newly minted republic would not have unlimited power but could, if need be, be prosecuted in the ordinary course of law. The overriding purpose of the revolution was to free a fledgling democracy from the clutches of absolute monarchy and to enshrine the principle that no one is above the law. To their everlasting shame, John Roberts and his collaborators would have us forget this purpose entirely.