The just-ended U.S. Supreme Court term will be remembered in ignominy.
Stripped of legal arcane language, the court crowned the president a king, decapitated the administrative state, and said bribery of public officials was OK so long as the money was handed over after the official act.
The Supreme Court has crippled the government’s ability to address the difficult challenges of modern technological life: climate change, food and medicine, AI, social media. All of these issues, and more, will be handled by the courts, even if the executive branch is better suited to address them.
And the Supreme Court has fundamentally altered the relationship between the president and the American people, making it difficult, if not impossible, to hold a president accountable for criminal acts committed while in office.
Justice Ketanji Brown Jackson, in a sharp dissent, President Trump’s immunity decision The “new paradigm” constructs a world in which the president is immune from legal responsibility for murder, theft, fraud, and other reprehensible criminal acts. Since it all depends on whether the president acted in his “official capacity” or as a private citizen, the answer to the question of immunity will always necessarily be “it depends.”
After piously declaring that the President is not above the law, the Supreme Court, in an opinion authored by Chief Justice John Roberts, created a presumption that the President is in fact above the law in all his official acts.
The very court that ruled that reproductive rights can be extinguished by the states because the Constitution does not mention either reproductive rights or abortion, stated that the President has complete immunity from criminal prosecution for “core” acts within his “definitive and exclusive constitutional powers” and is presumptively immune from “acts in office,” even after he has left office; yet the words “presidential immunity,” “acts in office,” “presumption,” and “core constitutional powers” are nowhere to be found in the Constitution.
The Supreme Court said the presumption of immunity for “official acts” could be rebutted by the prosecution in pretrial hearings, and the findings could be appealed before the trial begins.
The Framers knew how to give public officials immunity if they wanted to. George III had immunity. He couldn’t do anything wrong. The Framers gave members of Parliament limited immunity for their actions. “Speech and Debate” At the time, governors of some states had immunity under their state constitutions. Of course, the Framers of the Constitution chose not to extend such immunity to the president.
The Constitution clearly states that a president can be impeached, removed from office, and criminally prosecuted if he commits a crime. This has been the case for more than two centuries. Until Donald Trump, no president in history had ever been tried for a federal crime.
The main point of today’s judgment is that all of the President’s official acts, defined without regard to motive or intent, are entitled to at least “presumptive” and perhaps “absolute” immunity. So if the President accepts a $1 million bribe in advance to appoint a friendly ambassador to Jamaica, or orchestrates a coup to overturn a presidential election, he is clearly exercising the enormous power of his office in a completely corrupt way, but the majority is saying that the criminal law cannot (at least presumptively) affect him.
Even if we assume that the taking of the bribe was a private act rather than a public one, the Court held that the prosecution could not go into the motive for the bribe (the ambassadorial post) or even the motive for the coup (the maintenance of power) unless the government could prove that the application of the criminal prohibition to that act would not risk an infringement on the powers and functions of the executive branch. Under such a standard, the criminal act would be severed from the evidence.
According to the majority’s reasoning, what if the president ordered SEAL Team Six to assassinate a political opponent? He’s immune. What if the president ordered the military to remain in power regardless of the outcome of the election? He’s immune. What if he accepted a bribe in exchange for a pardon? He’s immune from liability, even more so than the immunity provided by a COVID vaccine.
If the president breaks the law, if he uses the privileges of his office for personal gain, if he uses his public power for mischief, he will be immune. Why? Because the Court has decided that if the president knew he might one day be held accountable for breaking the law, he might not be as bold and fearless as the radical conservative majority would like him to be.
A new paradigm is now emerging. The relationship between the president and the American people has been irrevocably altered. In all exercises of public power, the president is now a king above the law. He does not have to go to court to argue a substantive defense to a criminal charge; he may not be charged. And a wise president can postpone a trial indefinitely by filing a pretrial motion asserting a rebuttable presumption of immunity.
The court effectively gave Trump immunity by taking its time to rule (it ruled on the final day of the session) and sent the case back to Judge Tanya Chutkan of the District of Columbia, whom Trump has already slammed as biased.
She will likely hold a preliminary hearing, possibly shortly before the election, to allow the government an opportunity to present the public with hard facts of President Trump’s criminal conduct in an effort to overturn the presumption of immunity that applies to non-core official conduct.
The defense acknowledged during oral argument that some of Trump’s actions on January 6 were personal rather than official, but all of them are subject to a new paradigm: a standard without a benchmark, alpha without omega. If Trump loses, he has the right to appeal all the way to the Supreme Court, with all the delays that would entail.
Today’s ruling will likely have no legal impact on anyone other than Donald Trump. Never in 230 years has a president authorized an attack on democracy, spread the “big lie” that he won an election he knew he lost, or schemed to pressure a vice president or state officials not to certify the results of a fair and free election. This will never happen again. Let’s hope so.
But Trump got away with it. The courts gave him a historic legal victory. In the eyes of the public, he remains the Teflon Don. What will other would-be dictators think?
James D. Zillin is an author, legal analyst, and former U.S. Attorney for the Southern District of New York. He is also a public television talk show and podcast host.A conversation with Jim Gillin.
