Following the Supreme Court ruling that broadly protected presidents from being prosecuted after they leave office, President Biden and Democratic critics expressed concern that former President Trump would be further emboldened if he is re-elected.
President Trump and his allies have set their sights on a more ambitious plan for a second term and have vowed to use the levers of power available to them more forcefully.
Trump has also suggested that if re-elected, it would be acceptable for him to seek retaliation against his opponents, raising questions about the extent to which the decision would protect Biden or whether it would authorize the retaliation Trump seeks.
It was an issue Biden immediately put at the forefront in his speech Monday night.
“Now that the American people know that Donald Trump will be even bolder in doing whatever he wants, whenever he wants, they must decide whether to entrust him with the presidency,” Biden said.
“In effect, today’s decision almost certainly means that there are virtually no limits to what the president can do.”
In its decision on Monday, the Supreme Court ruled that the president has immunity from liability for major official acts he performs while in office. For all other official acts, the president has “at least presumptive” immunity.
The court made clear that Trump was “completely immune” from even his efforts to pressure the Justice Department to investigate unproven claims of election fraud and to pressure states to withhold certification of electors.
It’s a decision that Trump’s critics fear will open Pandora’s box.
“Donald Trump has made it clear that if he wins the election, he intends to use his executive power to pardon all conspirators, weaponize the Department of Justice by firing its staff, and replace it with an army of lackeys ready to launch retaliatory harassment against his political opponents,” Rep. Jamie Raskin (D-Md.), who served on the now-disbanded House committee that investigated Jan. 6, said in a statement after the verdict.
“All of this would probably be permissible under today’s horrific sentence.”
Raskin described the ruling as giving the president permission to “assassinate political opponents, orchestrate military coups, and accept bribes,” echoing a dissenting opinion written by the Supreme Court’s three liberal justices.
Justice Sonia Sotomayor, in her dissent, cited the same crimes and wrote that granting immunity to conduct rooted in official conduct would prevent the court from addressing abuses of its power.
And in a concurring dissenting opinion, Justice Ketanji Brown Jackson similarly stuck to the president’s ability to commit murder.
“For example, a president may have the discretion to fire the attorney general, but the question at issue here is whether the president has the option to remove the attorney general, such as by poisoning him,” she wrote.
“In other words, the issue here is not whether the president has exclusive removal power, but whether a criminal law of general application prohibiting murder can limit the president’s exercise of that power.”
Chief Justice John Roberts, in his majority opinion, said immunity was needed to prevent “enterprising” prosecutors from bringing charges against the president.
Roberts acknowledged that executives could attack each other without the immunity granted in Monday’s order.
“The dissent overlooks that by allowing successive presidents to prosecute their predecessors at will, the executive branch is more likely to consume itself,” he wrote in the majority opinion.
“Ambiguous prosecutors in the new administration may well argue that the former president violated this broad law. Without immunity, these types of prosecutions against former presidents could soon become routine.”
Trump has repeatedly suggested during the presidential campaign that he is considering revenge, while his campaign has said retaliation will come through voting.
Last month, Trump told Newsmax that it was “highly likely” Democrats would be indicted in the future. The next day, he told Fox News’ Sean Hannity that after he was indicted, “we’re well within our rights to go after them.”
And on Monday, after his former strategist Steve Bannon was jailed for failing to comply with a Jan. 6 committee subpoena, Trump said Biden “will pay a big price” though his campaign later said the remarks were about the election.
“This is total weaponization,” he told locals. Radio station in Richmond, Virginia.
“What they did in this country is unthinkable and I think Biden is going to pay a big price for it.”
Monday’s decision provides a shield of sorts if a re-elected Trump plans to attack former President Biden in the future.
Like Trump, Biden is a former president and therefore cannot be prosecuted for conduct related to his primary official duties.
House impeachment leaders have signaled they will send a criminal indictment to the Justice Department to investigate so-called influence tactics used by the Biden family, a move that could be a roadblock. That would have been a risky move for Republican investigators, because to do so they would have needed to name crimes committed by Biden, which the GOP investigations have so far failed to uncover.
But not other top Biden officials, including Attorney General Merrick Garland, Homeland Security Secretary Alejandro Mayorkas and Biden’s family, who are also targets of Republicans who are calling for special counsel Jack Smith to indict them.
The decision also opens up other avenues for Trump to investigate or harass Biden, but such actions would rely on his official powers and likely go unchecked by the courts.
The ruling includes other elements that could complicate prosecutions, such as barring acts the president took within the scope of his official powers from being used as evidence in other parts of the case, and similarly instructs courts not to consider the motives for the president’s actions.
“Is the president storming the home of a political opponent because of a feud rather than a legitimate suspicion of criminal activity? The feud is legally irrelevant,” MSNBC legal analyst Lisa Rubin wrote on social platform X.
Political commentator Van Jones described the ruling as a “license to riot.”
“Whatever they do, the Supreme Court will probably allow it. In this case, that’s very frightening and I’m very concerned,” he said during an appearance on CNN.
President Trump took to social media to celebrate the verdict, writing that Smith had been “terribly treated” by the court.
In another post, he maintained that he is completely innocent despite the remand of the Jan. 6 incident, which will consider whether other actions he took to overturn the 2020 election constitute major official acts.
“A complete and utter acquittal! The Supreme Court’s stunning and historic decision clearly ends the entire evil Joe Biden witch hunt against me, including the civil mischief instigated by the White House and Department of Justice in New York,” Trump wrote on Tuesday.
“All of these unjustified accusations represent the worst level of election interference ever seen in our nation’s long and storied history.”
The Biden campaign said the decision was troubling and a significant issue for the campaign.
“I’m very scared, and I think the American people are scared and should be scared about what Donald Trump might do, because he’s been saying that for months,” Biden’s chief deputy campaign manager Quentin Fulks said in response to the decision.
“I am confident that when President Biden goes on the campaign trail, as he has done for months, he will talk about why Americans should fear Donald Trump, and today’s Supreme Court decision just reinforces that.”
