In 1881, Oliver Wendell Holmes Jr. wrote that “The life of the law has not been logic, it has been experience.” Holmes, who would later become a Supreme Court Justice, meant that the law could not be based on abstract, sterile philosophies or theories detached from reality. Instead, law is a practical and pragmatic enterprise that must take into account how legal rules and judicial decisions operate in the real world.
The U.S. Supreme Court’s presidential immunity decision in Trump v. United States is rooted in neither logic nor experience. The Court ruled that Presidents are broadly immune from criminal prosecution whenever they use the powers of their office, even if they use those powers to commit what would otherwise—for anyone else—be crimes. This is a breathtaking and dizzying conclusion that turns everything we know about our Constitutional system on its head. The framers of the Constitution emphatically did not want a monarch who was unconstrained by law. Their writings in the Federalist Papers and in the Constitution make this clear.
Alexander Hamilton, who took the broadest view of executive power, declared that, unlike a monarch, the President, like every other government official, “ought to be personally responsible for his behavior in office.” Chief Justice John Roberts’s majority opinion perversely adds a caveat to Hamilton’s statement—that somehow Presidents are not personally responsible for criminal behavior in office.
Elsewhere, Hamilton explained that, under the Constitution, “The President of the United States [unlike the British monarch] would be liable to be impeached, tried, and upon conviction of treason, bribery, or other high crimes and misdemeanors, removed from office and would afterwards be liable to prosecution and punishment in the ordinary course of law.” Treason and bribery are, of course, crimes—but Roberts says that Presidents can not be prosecuted for such offenses when committed pursuant to what a President believes is his or her authority. This is not logic; it is madness.
As for experience, the reason this case came before the Court is that Donald Trump tried to overturn the results of the 2020 election by, among other things, separately pressuring then-Vice President Mike Pence and Georgia Secretary of State Brad Raffensperger to change the results of the vote, while also attempting to enlist the Department of Justice to falsely state that fraud had affected the election. The Court’s decision is an invitation for any President to do precisely what Trump did—or even more—to attempt any criminal act to hold onto power. As Ian Milihiser writes, this is a blueprint for dictatorship—or, as the framers would have called it, “tyranny.”
The Supreme Court’s decision is roughly the legal equivalent of a scientific body declaring that the laws of physics no longer apply. Everything we thought we knew about checks and balances, the rule of law, liberal democracy, and limits on power has been thrown out the window. The important question to ask, once we collect our addled minds and shake off the haze created by the Court’s upside down illogic, is: What happens now?
There are two possible paths—each one uncertain. In the first scenario, President Joe Biden stands for election against Donald Trump, a self-declared would-be dictator. It is possible that Biden could win—although his disastrous debate performance last week creates ample reason for doubt. If Biden loses, he could take up the Court’s invitation to use all the powers of his office to do whatever he can—whether against the law or not—to remain in office. The only limits would be Biden’s own self-restraint and the extent to which government officials would carry out Biden’s orders. In theory, Congress would act as a check, but in practice we have seen that impeachment and removal from office is a dead letter; if Republican Senators would not remove Trump from office after January 6, would Democratic Senators act differently for Biden?
Like Trump, Biden could pressure Vice President Kamala Harris to throw out the election results. Like Trump, Biden could pressure Democratic secretaries of state to “find enough votes” for him to win. Like Trump, Biden could attempt to enlist the Department of Justice to help by falsely asserting the election had been stolen through fraud. Biden could go even further, doing things Trump had considered but not actually implemented, like ordering the military to seize voting machines and rerun the election.
Let me be absolutely clear: I advocate for none of these anti-democratic measures, and I do not believe Biden would do any of these things if he lost. I’m simply noting that this is the Pandora’s Box that the Court has opened.
There is at least one other possible path: Biden steps aside and another nominee (most likely Vice President Harris) represents the Democratic Party on this year’s ballot. Last February, I argued that this should happen, and I believe Biden’s debate performance only underlines the danger of his remaining as the presumptive nominee. Of course, there is risk here as well—no one can say for sure whether a new candidate would have a better chance than Biden of stopping Trump from regaining office and destroying democracy. The Supreme Court’s decision, however, has made it crystal clear what is at stake.
If Trump returns to the White House, he will now have carte blanche to effectively rule as a dictator, unconstrained by law, limited only by his own imagination and what his underlings will agree to do. That is a risk no one should be willing to accept.