Two UC Berkeley scholars have warned that the Supreme Court’s decision on presidential immunity poses a “direct threat” to democracy and the rule of law, and expressed concern about what a second term for former President Donald Trump might look like.
In a 6-3 decision on Monday, the Supreme Court ruled along ideological lines that the president has absolute immunity for acts that are within the core responsibilities of his office, but “has at least a presumptive immunity” for all other acts of official business.
“We did not anticipate that the definition of absolute immunity for presidential criminal conduct would be so broad,” said Erwin Chemerinsky, dean of the University of Berkeley Law School. said on Tuesday“While the Court leaves many questions unresolved, it has dramatically and shockingly affirmed the President’s broad and absolute immunity.”
Chemerinsky and Berkeley political scientist Terry Vimes argued in a UC Berkeley press release that the ruling “gives the president superior to the law in a law never written into the U.S. Constitution or established by more than 200 years of case law.”
Scholars have predicted the ruling could jeopardize the next presidential term, warning that if Trump is re-elected in November, he could use the new protections to pursue political opponents. Trump has repeatedly vowed to exact revenge against political opponents and those who bring criminal charges against him or his allies.
Vimes, a scholar of U.S. presidential history and administration, called the ruling “dangerous.”
“This decision seems to authorize the president to use the power of his office to commit illegal, criminal acts,” Vimes said. “The fact that these acts are done in the name of the president and are official acts gives them immunity from prosecution. That’s really troubling.”
The scholars further argued that the Supreme Court’s decision could have long-term and fundamental effects on the presidency, strengthening presidential power and increasing the risk of a more authoritarian leader.
The scholars’ concerns echo those of several Democrats who say future presidents will be emboldened to break the law with impunity. Democrats have long argued that under the Constitution, no one is above the law, not even the president. By ruling that Trump cannot be prosecuted for certain actions, Democratic critics argue, the Supreme Court went against the Founding Fathers’ intent.
Chemerinsky pointed to a hypothetical scenario posed by Supreme Court Justice Sonia Sotomayor in her dissent in which President Trump might use his public power to order Navy SEAL Team Six to assassinate a political opponent.
“If a president were to order Navy SEALs to assassinate a political opponent, he would be exercising his powers as commander in chief and would therefore have absolute immunity,” Chemerinsky wrote. “He could also use the Department of Justice to seek retaliation and pursue politically motivated prosecutions, which would be protected by absolute immunity.”
“There are certainly gray areas when it comes to things that are outside the scope of presidential authority,” he added, “but even there the Supreme Court has said there is presumed absolute immunity.”
Vimes later noted that the decision suggested the court could no longer restrain a “rogue” president.
“It’s a more personal power that the president can use all the powers of the presidency to do what he wants,” Vimes said. “So we really need the courts to step in to rein in the president and hold him accountable. But I’m not sure we can rely on that. I’m not confident. Our democracy is at risk because of the character of Donald Trump.”
The Supreme Court’s decision was a victory for Trump, who faces a criminal trial brought by Special Counsel Jack Smith for subverting the federal election. The ruling could delay the trial and first send the case back to a lower court to determine whether Trump’s actions on January 6, 2021, merit protection from criminal prosecution for decisions made while in the White House.
