The Supreme Court’s Imperial Presidency Is Now Here, Not Just Rhetorically but in Fact
They did it. The Supreme Court handed a massive victory to Donald Trump in this so-called “immunity” case, and it will probably take a year or more before there’s even a chance he’ll be held to trial for trying to overthrow the 2020 election and, thus, the government of the United States.
As feared, the six Republicans on the Court essentially threw Trump’s sedition case back to the lower court (with caveats) where there will be numerous decisions to make — which are all further appealable, resetting the case so Trump can drag things out for another year or more — about whether the crimes he’s committed are “official” or “private/personal” acts.
But that’s not the worst of it. They also turned Trump or any future fascist president into our first American king or führer.
And, of course, no matter what little fig leaves exist in this decision, if he’s elected this fall, he’ll appoint a corrupt attorney general, who’ll make Trump’s attempts to overturn the 2020 election all go away immediately.
Chief Justice Roberts went so far as to say in this corrupt decision that Trump’s speech exhorting people to attack the Capitol and try to hang Mike Pence, and his failure to bring in the National Guard or ask his rabid followers to back off, may well be part of his “official responsibilities.”
Speaking to Trump’s calling his rioters to overthrow the election, Chief Justice Roberts bizarrely writes that:
“[M]ost of a president’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities.”
Justice Sotomayor is having none of it. Her dissent summarizes the situation elegantly:
“Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.
“Relying on little more than its own misguided wisdom about the need for ‘bold and unhesitating action’ by the President, the Court gives former President Trump all the immunity he asked for and more. Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent.”
She adds:
“The Court now confronts a question it has never had to answer in the Nation’s history: Whether a former President enjoys immunity from federal criminal prosecution. The majority thinks he should, and so it invents an atextual, ahistorical, and unjustifiable immunity that puts the President above the law. The majority makes three moves that, in effect, completely insulate Presidents from criminal liability.”
The six Republicans on this Court have essentially declared that they and Trump are so far above the law that the entire concept this nation was founded on — that “no person is above the law” — is null and void.
All a future president must do if they want to commit a crime, as Justice Jackson’s dissent demonstrates, is to claim that no matter what they did, it’s merely an “official act.” Including, specifically, directing the Attorney General to commit crimes himself.
This is the sort of decision you’d get from a court in Putin’s Russia.
As Justice Sotomayor’s dissent lays out clearly:
“The main takeaway of today’s decision is that all of a President’s official acts, defined without regard to motive or intent, are entitled to immunity that is ‘at least . . . presumptive,’ and quite possibly ‘absolute.’ Whenever the President wields the enormous power of his office, the majority says, the criminal law (at least presumptively) cannot touch him.
“This official-acts immunity has ‘no firm grounding in constitutional text, history, or precedent.’ Indeed, those ‘standard grounds for constitutional decisionmaking,’ all point in the opposite direction. No matter how you look at it, the majority’s official-acts immunity is utterly indefensible.”
She adds, correctly:
“The Constitution’s text contains no provision for immunity from criminal prosecution for former Presidents.”
Justice Ketanji Brown Jackson makes it even more clear, in the bluntest of language, that this Court — acting like kings and queens themselves — have turned the former president into their peer — a king — with little to no accountability to the rule of law.
She wrote in her dissent:
“To fully appreciate the profound change the majority has wrought, one must first acknowledge what it means to have immunity from criminal prosecution. Put simply, immunity is ‘exemption’ from the duties and liabilities imposed by law.
“In its purest form, the concept of immunity boils down to a maxim—’[t]he King can do no wrong’—a notion that was firmly ‘rejected at the birth of [our] Republic.’ To say that someone is immune from criminal prosecution is to say that, like a King, he ‘is not under the coercive power of the law,’ which ‘will not suppose him capable of committing a folly, much less a crime.’
“Thus, being immune is not like having a defense under the law. Rather, it means that the law does not apply to the immunized person in the first place. Conferring immunity therefore ‘create[s] a privileged class free from liability for wrongs inflicted or injuries threatened.’”
Unless Congress acts quickly to overturn this obscene 6-3 decision — which won’t happen so long as Republicans control the House — democracy in America has been wounded, perhaps fatally, and the president has been made into a dictator, should he or she choose to behave that way.
As Justice Sotomayor said:
“When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune… With fear for our democracy, I dissent.”
When we have a president (Biden) who respects the fundamental law, history, and traditions of America, we’ll be safe — for now. On the other hand, if Trump or any other fascist Republican becomes president, he can pretty much do anything he wants.
The imperial presidency is now officially here, not just rhetorically but in actuality. The six Republicans on the Supreme Court today did massive, perhaps irreparable, violence to our republic.
We’re in huge trouble, this Court is out of control, and the Senate needs at act (Senator Dick Durbin!!!).
If Trump is elected, these six Republicans just gave him near-Putin-like powers to end our democratic republican form of government, as Justice Gorsuch said, “for the ages.”
Thom Hartmann is a NY Times bestselling author of 34 books in 17 languages & nation's #1 progressive radio host. Psychotherapist, international relief worker. Politics, history, spirituality, psychology, science, anthropology, pre-history, culture, and the natural world.