Supreme Court Gives Trump and Future Presidents a Loaded Gun to Break the Law

The Supreme Court's decision to grant presidents immunity from prosecution for criminal acts committed while in office not only gives Donald Trump carte blanche for his past crimes, it also sets a dangerous precedent for all future presidents.

Before Trump, no one had even argued that presidents were absolutely immune from criminal liability after leaving office. In fact, every president, including Trump himself, has assumed the opposite. At his impeachment trial, Trump’s lawyers argued against impeachment by conceding that an acquittal would not end potential liability, because he could be criminally prosecuted after he left office. This concession was consistent with the acceptance by all previous presidents that the United States is a country where all citizens, including the president, are equal before the law.

That is no longer the case. In Trump v. United States, the Republican-appointed justices, including the three Trump appointees, announced a brand new constitutional immunity from criminal liability for the president’s official acts, or for anything a president might do using the powers of his office. The courts’ decision ensures that future presidents, including Trump himself if he is reelected in November, will know that they can escape criminal liability for clearly criminal acts, no matter how corrupt. Even acts that strike at the heart of our democracy, such as resisting the peaceful transition of power, would not be prosecuted.

The Court tried to portray its opinion as moderate, emphasizing that it rejected former President Trump’s most extreme claim: that presidents can only be prosecuted for crimes for which they have already been impeached. But as Justice Sonia Sotomayor pointed out in a vigorous dissent, there is nothing measured about the opinion or its consequences. The Court grants absolute immunity from criminal prosecution for all core executive acts of a president, which the Court then defined to include any recourse to the Justice Department—an agency ostensibly and traditionally independent for criminal investigations. And it grants presumptive immunity for all acts within the outer perimeter of his official responsibility. While this latter immunity is theoretically rebuttable, the Court has set such a high standard for rebutting it that it may also be effectively absolute.

The Supreme Court has indeed held that a president can be prosecuted for nonofficial, purely private acts, a proposition that even Trump has not challenged. But the court’s conception of official acts is surprisingly broad. Worse, the court has also held that official acts cannot even be used as evidence to support a crime committed in the president’s personal capacity, making it even harder for prosecutors to charge a president for even purely private criminal acts. The court claims to leave much of the work of sorting out the details of Trump’s case to lower courts. But the standards it has announced will make it extremely difficult to criminally indict any president.

The immediate consequence of this decision is that it throws into disarray the ongoing federal prosecution of former President Trump for interference in the 2020 election. To be sure, those prosecutions are not over yet. Officially, the Supreme Court has definitively disqualified only one set of allegations, those concerning Trump’s communications to the Justice Department, from the indictment. But in practice, the fact-finding that the district court must now embark on, and any appeals that arise from it, will take months, if not years, to resolve before a trial can begin. Moreover, President Trump has already sought to vacate his criminal conviction in New York state.

As Justice Robert Jackson warned in his dissenting opinion in the famous Korematsu case that upheld the federal government's internment of Japanese Americans, the court's opinion is like a loaded gun for future presidents, who can now avoid criminal liability for all manner of criminal purposes as long as they do so through ostensibly official authorities.

As Justice Sotomayor wrote in her dissenting opinion:

The President of the United States is the most powerful person in the country, and perhaps the world. When he uses his official powers in any way, the majority reasoned, he will now be immune from criminal prosecution. Does he order Navy Seal Team 6 to assassinate a political rival? Immunized. Does he stage a military coup to hold on to power? Immunized. Does he take a bribe in exchange for a pardon? Immunized. Immunized, immune, immune.

If former President Trump manages to win the November election, it doesn't take much imagination to see what kind of retaliation, or worse, the Court has now given him the green light to wreak against his political enemies.

But it is important to remember that while this decision eliminates the possibility of criminal liability, other forms of accountability remain. As long as this misguided decision remains in place, we must fight presidential abuses of power in other ways. In particular, we must resist attacks on our rights and freedoms, criminal or otherwise, before they happen, through civil lawsuits, at the ballot box, and in the halls of power across the country. Under the Trump administration, we have filed more than 400 lawsuits to defend constitutional rights and freedoms against his administration’s unprecedented attacks, and we have often succeeded in stopping illegal acts.

If he is re-elected, we will be prepared to do the same. Our teams have already drafted our response to the civil liberties and civil rights violations outlined in Trump’s transition plan, and we promise to challenge any actions, official or otherwise, that violate the Constitution.

The threat of criminal prosecution is an important deterrent to presidents breaking the law. It has largely disappeared, thanks to the Supreme Court. But it is just one form of accountability and constraint, one that, let us recall, was never used in the past. As they always have, the courts can still convict presidents who behave illegally. Congress has powerful oversight, budgetary, and legislative powers that can check even a rogue president. And perhaps most importantly, by voting as if our rights depended on it, we can all help ensure that future presidents leave the courts with a loaded gun in their holster.

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