Opinion | Supreme Court gives carte blanche to Donald Trump and future presidents

On Monday morning, the Supreme Court concluded its term in spectacular fashion by delivering a priceless gift to Donald Trump and all future presidents who intend to violate the law and their oath to the Constitution. In a 6-3 decision, the court’s conservative majority declared that official acts that are at the heart of the presidency enjoy absolute immunity from prosecution. Other acts, even those that touch on the outer limits of a president’s official duties, enjoy presumptive immunity, the court said, making them much harder to prosecute.

The immediate effect of this decision, one of the most far-reaching ever handed down by the Supreme Court on presidential powers and constitutional government, was to indefinitely delay the prosecution of Mr. Trump for his attempt to overturn the 2020 election. This fall’s vote will now almost certainly take place without anyone being held accountable for that act. But the long-term danger to the Constitution and the American government is even more serious, especially given the real possibility that Mr. Trump, whose recent criminal conviction in New York is only the latest demonstration of his disregard for legal limits, could be reelected in just a few months.

Since Monday, the bedrock principle that no one is above the law has been cast aside. In the very week that the nation celebrates its founding, the Supreme Court has undermined the raison d’être of the American Revolution by granting presidents what one dissenting justice called a lawless zone in which to operate, taking a step toward restoring the monarchy that the Declaration of Independence rejected. Presidents can still be impeached for crimes they commit in office, but it’s hard to imagine how they could ever be prosecuted. They can commit once-unthinkable acts, like encouraging an insurrection at the Capitol, without fear of later going to prison or being held accountable by the courts.

As Justice Sonia Sotomayor wrote in a scathing dissent, along with the two other liberal justices, the decision creates a series of nightmare scenarios for what a president is now allowed to do. Order Navy SEAL Team 6 to assassinate a political rival? Immunized. Stage a military coup to hold on to power? Immunized. Accept a bribe in exchange for a pardon? Immunized. Immunized, immune, immune.

She added: “The relationship between the president and the people he serves has changed irrevocably. In every exercise of his official power, the president is now a king above the law.”

The decision, written by Chief Justice John Roberts, dramatically raises the stakes in the upcoming election. Not only does it underscore the importance of the president’s Supreme Court nominations — all three of Mr. Trump’s nominees voted to grant him the immunity he sought — it also gives Mr. Trump carte blanche to act even more aggressively in a second term than he did in his first. The chief justice explicitly said that Mr. Trump’s speech and tweets on Jan. 6, 2021, urging his supporters to march on Capitol Hill and disrupt the certification of the vote, could well be protected as a standard use of the presidential pulpit. The court sent the case back to the district court for factual determinations on this and other issues, a process that, including appeals, will take months or longer.

And yet we know that Mr. Trump’s speech and tweets led to a violent insurrection. Now that Mr. Trump knows he can get away with it, how much worse could things get in a second term? The more pressing danger is his potential abuse of the justice system, because as the dissent suggests, if every conversation between the president and the Justice Department is considered a protected official act, there is no limit to the kinds of illegal conduct that could be planned, including fabricating evidence.

What does not constitute an official act? The majority judges did not specify, but it is difficult to identify a clear guiding principle, perhaps because they did not find one.

Before this decision, presidents did not enjoy criminal immunity. While the framers of the Constitution granted some form of this privilege to members of Congress, they refused to do so for the head of the executive branch. For a conservative majority that claims to rely on historical precedent, the new norm that has been created is remarkable for its lack of basis in the Constitution, the law, or any Court precedent. It is completely fabricated.

The product of the majority’s invention flies in the face of the very notion of a government based on the rule of law. It also flies in the face of the long-held idea that a president is subject to criminal prosecution whether his actions are considered official or not. As Justice Sotomayor pointed out, why would Richard Nixon have accepted a pardon for his role in the Watergate scandal if not because everyone agreed that he could otherwise be prosecuted for his actions?

That same understanding was clear during Mr. Trump’s second impeachment trial, in 2021, when his lawyers insisted to senators that acquitting Mr. Trump for his actions on and around Jan. 6 would in no way place him above the law. They acknowledged that a former president is like any other citizen and can be tried in a court of law.

This is no longer the case. According to Justice Ketanji Brown Jackson, this is a five-level fire that threatens to destroy democratic self-governance and the normal functioning of our government.

Chief Justice Roberts tried to allay concerns about the implications of the court's decision by saying that the president has no immunity for his unofficial actions and that not everything the president does is unofficial. The president is not above the law.

But unofficial acts, like a campaign speech, were never at the heart of this dispute. Even Mr. Trump’s lawyers have conceded that he is not immune from lawsuits for unofficial acts. The problem is that the scope of what is official, according to this court, has no definition. The majority has refused to characterize any of Mr. Trump’s acts as clearly unofficial, even acts that Mr. Trump’s own lawyers have acknowledged were unofficial, such as conspiring to organize fraudulent voter registrations.

The courts have spoken, Mr. Trump said after the verdict. As always, the only legitimate outcomes Mr. Trump recognizes in American government are those that benefit him personally. That’s the attitude he has promised to take in the 2024 election. If he loses, he has already said it will be because of fraud. If he wins, he will heed the message the court sent him on Monday and act accordingly. And the country will undoubtedly be worse off for it.

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