Supreme Court's Decision on Trump's Immunity Is a Model of Dictatorship

The Supreme Court's six Republican justices issued a ruling Monday that grants Donald Trump so much immunity from prosecution that his behavior is unlikely to be subject to judicial review if he returns to the White House. The Supreme Court's three Democratic justices disagreed.

Trump v. United States is a stunning decision. It holds that presidents enjoy broad immunity from criminal prosecution—a license to commit crimes as long as they use the official powers of their office to do so.

Broadly speaking, the majority opinion by Chief Justice John Roberts reaches three conclusions. The first is that when the president takes action under the authority given to him by the Constitution itself, his authority is conclusive and exclusive and he cannot therefore be sued. So, for example, a president could not be sued for pardoning someone because the Constitution explicitly grants the chief executive the power to grant pardons and pardons for offenses against the United States.

One question that has hung over the case for months is whether presidential immunity is broad enough for the president to order the military to assassinate a political rival. While the case was before a lower court, a judge asked whether Trump could be prosecuted if he had ordered SEAL Team 6 to assassinate a political rival, and Trump’s lawyer responded that he couldn’t do so unless Trump had been previously impeached and convicted of doing so.

Roberts’s take on Trump, however, seems to go even further than Trump’s lawyer. After all, the Constitution states that the president is commander in chief of the United States Army and Navy. So if presidential authority is determinative and exclusive when presidents exercise the powers granted to them by the Constitution, the Court seems to have ruled that yes, Trump could order the military to assassinate one of his political opponents. And nothing can be done to him for doing so.

As Justice Ketanji Brown Jackson writes in her dissent, starting today, tomorrow's presidents will be free to exercise the commander-in-chief powers, the foreign affairs powers, and all the broad law enforcement powers enshrined in Article II as they choose, including in ways that Congress has found to be criminal and that have potentially grave consequences for the rights and freedoms of Americans.

Roberts' second conclusion is that presidents also enjoy a presumptive immunity from criminal prosecution for acts committed within the scope of their official responsibility. Thus, if a president's action touches on his official authority (the outer perimeter of that authority), then the president enjoys a strong presumption of immunity from prosecution.

This second form of immunity applies when the president uses an authority that is not specifically mentioned in the Constitution, and it is quite broad, probably extending even to simple conversations between the president and one of his subordinates.

The Court also finds that this second form of immunity is exceptionally strong. As Roberts writes, the President must therefore be immune from prosecution for an official act unless the government can demonstrate that applying a criminal prohibition to that act would pose no risk of intrusion into the authority and functions of the executive branch.

Moreover, much of Roberts’s opinion details the extent of that immunity in practice. Roberts argues, for example, that Trump is immune from prosecution for conversations between himself and senior Justice Department officials in which he allegedly urged them to pressure states to replace their legitimate electors with fraudulent members of the Electoral College who would vote to install Trump for a second term.

Roberts writes that the executive branch has the exclusive authority and absolute discretion to decide what crimes to investigate and prosecute, and that Trump’s conversations with Justice Department officials therefore fall within its power of conclusion and estoppel. By this logic, Trump could not have been charged with a crime if he had ordered the Justice Department to arrest every Democrat holding elected office.

Roberts also suggests in his opinion that not every conversation between Trump and one of his advisers or subordinates can be prosecuted. To explain why Trump’s attempts to pressure Vice President Mike Pence to fraudulently change the election results are unlikely to be prosecuted, Roberts points to the fact that the vice president is often one of the president’s closest advisers, for example.

Finally, Roberts admits that the president can be prosecuted for unofficial acts. So, for example, if Trump had personally tried to kill then-presidential candidate Joe Biden in the run-up to the 2020 election, rather than ordering a subordinate to do so, Trump could likely be prosecuted for murder.

But even this qualification to Roberts’s ruling on immunity is not very strong. Roberts writes that by distinguishing between official and unofficial conduct, courts cannot investigate the president’s motives. And Roberts even limits the ability of prosecutors to prosecute a president who accepts a bribe in exchange for committing an official act, such as pardoning a criminal who pays the president. In Roberts’s terms, a prosecutor cannot admit testimony or private records from the president or his advisers investigating the official act itself.

This means that while the president can be prosecuted for an unofficial act, prosecutors cannot prove that he committed the crime using evidence from the president's official actions.

The practical implications of this decision are staggering. As Justice Sonia Sotomayor wrote in a dissenting opinion, imagine that a president declares in a formal speech that he intends to prevent a political rival from passing a law he opposes, no matter what it takes to do so; it follows, according to Roberts’s opinion, that the resulting murder indictment could not include any allegation of a public admission by the president of premeditated intent to support the proposition that the president intended to commit murder.

In other words, Monday’s decision ensures that if Trump returns to office, he will do so with virtually no legal oversight. Under the Republican justices’ decision in the Trump case, a future president can almost certainly order the assassination of his rivals. He can use the authority of the presidency to commit countless crimes. And he can order a subordinate to do virtually anything.

And there's nothing we can do to him.

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