On this Fourth of July, we are the closest we've been to a monarchy since 1776
On Monday, the "conservative" Supreme Court injected a new provision into Article II of the Constitution, green-lighting Oval Office crimes committed with "official" power
On this day, 247 years ago, the original thirteen colonies of America celebrated their independence from Great Britain. Since then, this day has represented the birth of American democracy and the end of being ruled by a king.
But this year, reasonable Americans fear for the future of our democracy.
In all honesty, the disturbing ruling in Trump v. United States should not come as a major shock. The Supreme Court majority would not have taken this case or framed it so broadly if the far-right justices did not plan to manufacture a new part of the Constitution. What surprised me nonetheless was how close to the line of absolute immunity the majority got. It is tough to see what is still left of criminal liability and the rule of law for presidents moving forward with the very loose test this Court established.
The right-wing justices are out of control.
Sadly, it was only two years ago, on this same day, that Americans transformed their Fourth of July celebrations into protests for abortion rights in response to the devastating Dobbs decision. Now, as of July 1, the Supreme Court has not just threatened the rights and freedoms of individual Americans; they have made American democracy itself—government by the people and not a dictator—a potential relic of the past.
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Four days ago, the Court ruled in a 6-3 decision that rogue prosecutors like Jack Smith are the actual threat to our democracy — not would-be authoritarian leaders such as Donald J. Trump. The majority reasoned that we cannot trust prosecutors to act in good faith—despite (as Justice Sonia Sotomayor pointed out in her dissent) the inescapable fact that “federal criminal prosecutions require ‘robust procedural safeguards.’’
Instead, the justices injected a provision in Article II that gives presidents a presumption of absolute immunity from prosecution for official acts, even if done in a corrupt manner or in a way that violates this country’s criminal laws.
Bear in mind that this has it exactly backwards. It’s the official stuff that’s the problem for democracy—such as using the military or federal law enforcement to investigate, arrest, punish, imprison or even kill political enemies, for example. The unofficial stuff—like calling a campaign manager or cheating on taxes to hide assets from an ex-spouse—isn’t the sort of thing voters need to be as concerned about. (Remember impeachment over sex with an intern? Those were the days.)
So don’t be fooled by folks who claim the ruling isn’t as dire as it seems. Two nails in the coffin underscore my point.
First: The Court went out of its way to make clear that a president’s motive is beyond reproach. So a pardon in exchange for a bribe or a pardon to show mercy on a death row inmate are now both immune from criminal scrutiny. The “why” doesn’t matter.
Second: The evidence relating to official acts is now off-limits for the criminal justice system—not just charges in an indictment. So although former Trump Attorney General Bill Barr said recently that accepting a bribe would not be an official act (because it’s outside the scope of legitimate presidential power), how would prosecutors prove that crime access into evidence regarding the “official” reason for the quid-pro-quo and the president’s motive?
This ruling is going to make it much easier for presidents to keep vital information bearing on their actions from the public in the first place. It’s a check-mate on accountability for presidents.
I joined Alisa Chang on NPR’s All Things Considered to discuss the ruling just hours after it was released.
It is time to be scared. But the silver lining could be that people are finally waking up to how important it is to understand what is happening to our democracy and that the Supreme Court is embracing its demise.
For non-lawyers interested in a few bottom lines, here’s my YouTube video from my mini-series of videos called The Little Law School. (CAUTION: It’s not especially merry.)
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Here’s a far more detailed lowdown.
Quick recap of the Trump immunity case:
On August 1, 2023, a federal grand jury indicted former President Donald Trump on four counts for criminal activity that occurred during his presidential term after the November 2020 election. The indictment alleged that after Trump lost the election, he “conspired to overturn it by spreading knowingly false claims of election fraud to obstruct the collecting, counting, and certifying of the election results.” This was allegedly done in five key ways:
First, Trump knowingly used false claims regarding election fraud to persuade officials to change electoral votes from Biden to Trump.
Second, he communicated with the Department of Justice regarding election fraud investigations and choosing the leadership of the DOJ.
Third, he communicated with the state officials about how the federal election is orchestrated and how they complete their specific duties.
Fourth, he communicated with the Vice President and members of Congress about how they certify election results.
Fifth, Trump authorized or told others to put together a “contingent slates of electors” to get former Vice President Mike Pence to use his role to advocate for Trump.
Trump filed a motion to dismiss, arguing that he enjoyed complete immunity from any and all criminal charges as a former president. In the alternative, he claimed, the court should at least extend absolute immunity to the outer perimeter of the president’s official duties. Trump argued that the scope of immunity must be broad due to the breadth of decisions a president is responsible for.
Trump lost in the lower courts, due largely to the fact that there is no immunity for presidents in the Constitution (there is immunity for members of Congress under the Speech and Debate Clause).
The case was then appealed to the Supreme Court, which agreed to hear the question of “‘whether and if so, to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.’” This was a red flag, because the Court declined to consider the narrower (and far more proper) question of whether a president’s conspiring to steal an election and then inciting a bloody insurrection are immune from criminal scrutiny.
What did the Supreme Court say?
I wrote about it for The Bulwark.
Chief Justice John Roberts wrote the 6-3 majority opinion, joined by Justice Clarence Thomas, Justice Samuel Alito, Justice Neil Gorsuch, and Justice Brett Kavanaugh. Justice Amy Coney Barrett joined in the majority in part but filed her own concurring opinion. Justice Sonia Sotomayor dissented, joined by Justice Elena Kagan and Justice Kentanji Brown Jackson. Justice Jackson also wrote her own dissent.
The majority held:
former Presidents are protected by absolute immunity from prosecution for any core Constitutional acts, even if committed criminally, and
they enjoy a presumption of immunity for other acts, and
the presumption applies unless the government can show that a criminal prohibition to that act would pose no “dangers of intrusion on the authority and functions of the Executive Branch,” and
unofficial acts provide no immunity, and
although there are some clear lines around official-ness, it’s not clear what qualifies as unofficial.
Not to worry. If a president violates criminal laws again, and a prosecutor indicts that president again, and that president moves to dismiss the indictment, and the lower courts decide that his acts were official and not unofficial, the Supreme Court will let us know if the lower courts got that right.
What’s the line between official and unofficial?
The Court might give some additional guidelines on the line between official and unofficial in a further appeal of Trump’s Manhattan conviction, or in one of the three other criminal cases against him, if those ever go forward.
Here’s what we know so far:
OFFICIAL
The majority wrote that any act specified in Article II of the Constitution (e.g., the pardon power) is immune from prosecution, even if the act was committed by criminal or corrupt means.
For example, if a president pardons someone in exchange for something illegal, the Court suggests that they would still be protected from prosecution. The same probably goes for corrupt appointments of ambassadors and corrupt uses of the Commander-in-Chief power over the military (scary stuff, yes).
Everything related to Trump’s attempts to get the Department of Justice to support his attack on the 2020 election and change the results is now likely inadmissible, too. So using DOJ to attack political enemies — what Trump is promising in his Project 2025 dystopian tome — has now been greenlighted by the Supreme Court.
The reason is that instructing the DOJ and hiring/firing its leadership, the majority reasoned, are among the president's core constitutional powers. And according to the Court’s reasoning, it is impossible to second-guess whether a president would ever knowingly or willingly use such powers illegally.
The majority also ruled that most of Trump’s public communications, including any conversation with his former Vice President not to certify the election results, are likely immune from prosecution.
UNOFFICIAL
What might not be immune (again, we do not get a definitive answer) are Trump’s interactions with state officials regarding fake slates of electors and other nefarious attacks on the election results. Some of Trump’s conversations with Pence are official and totally immune, but others might not be, to the extent that they relate to the Senate’s role in certifying the election. Lastly, Trump’s statements as a candidate for office or party leader are also possibly subject to criminal scrutiny.
Is there another way to think about this ruling that makes it easier to grasp?
Most of us are familiar with the presumption of innocence that criminal defendants get when charged with crimes in America. Essentially, defendants are presumed innocent until the state has proven guilt beyond a reasonable doubt.
In the present context, this means that the president is presumed to be immune, and therefore, any evidence relating to his official acts is off-limits. Prosecutors have a huge burden to overcome if they want to investigate or charge former presidents for crimes committed in office.
(Bear in mind that the majority does not deny that we are talking about actual crimes. Otherwise, there’d be no reason to even talk about criminal immunity.)
Justice Sotomayor warns in her dissent that the consequences of this ruling are truly “nightmare scenarios.” Whether a president should choose to talk to his attorney general about efforts to fight terrorism or fabricate criminal charges against a political opponent or member of the media who is critical of him will be irrelevant. Both are official acts, and both get immunity.
The Supreme Court opened a giant can of worms with this decision. There is now this complicated scenario where even if a President really does do something that shocks the conscience, prosecutors are going to have to say, “Is this even worth bringing? Are we sure this is the kind of thing that should be prosecuted?” Because this immunity doctrine is hard to overcome.
What will happen next in the Trump trials?
I briefly spoke with ABC News’ Specialist Stephanie Ramos about the potential impact this ruling could have on Trump’s other cases.
The immunity case will now go back to the trial judge — U.S. District Judge Tanya Chutkan — for a two-step process. First, they will have to pick through all of the evidence that was initially brought to prosecute this case. Jack Smith will have to take out anything the majority held to be immune and, therefore, excluded from prosecution. If prosecutors believe there is still enough evidence to be brought to the court, they will file motions to address the remaining evidence.
Trump’s lawyers will no doubt argue that everything admitted into evidence falls into the category of official conduct, and the DOJ will argue the contrary. Judge Chutkan will have to make a ruling, which would likely be appealed to the U.S. Court of Appeals for the D.C. Circuit and possibly again for a hearing en banc (where all the appeals judges of that circuit would hear the case). Ultimately, it has the potential to go back up to the Supreme Court, which will have to decide what is and is not official conduct.
As for Trump’s other pending cases, the Florida case will be even further stalled. That case concerns Trump’s alleged taking of classified documents from the White House and obstructing the FBI’s attempts to get them back. When he packed up these boxes, Trump was still President. This means that Judge Aileen Cannon will have to break down that indictment and decide what, if anything, is left to be prosecuted.
The Georgia election interference case will have to do the same to decide what of Trump’s conduct must be excluded from the case. Why? The Supreme Court’s ruling came under the United States Constitution, which is the supreme law of the land and binds all courts and judges.
The “Hush money” trial could even be affected. Some of the reimbursement checks that Michale Cohen received came directly from Trump in the Oval Office. So, there is no question as to why the sentencing hearing, which was supposed to happen next Friday, has now been delayed until September.
Bottom line?
We have gone this far in our constitutional history without immunity for presidents. Presidents have to know the boundaries and lines they cannot cross. But now, in response to January 6th, the far-right majority essentially gave Donald J. Trump and his supporters a reward for that kind of activity.
The scenarios that Justice Sotomayor warns us of in her dissent are not far-fetched. She wrote: “When he [the president] 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…The relationship between the President and the people he serves has shifted irrevocably.”
This is inviting presidents to commit crimes as long as they do it officially. The only real disincentive is personal restraint and ethics. Presidents can take the risk that a crime will go unpunished, because they will operate with the reasonable expectation that whatever they do will be blessed down-the-line by this Court (at least if the Oval Office occupant is on the same side of the political aisle as the six-justice majority).
This is giving presidents A LOT of unfettered power. And it will be very hard to challenge its use or even find the evidence to create a case.
Follow the facts,
KW
My new book, Pardon Power: How the Pardon System Works—and Why, will be out on September 2! (Stay tuned for more on how the pardon power intersects with the immunity ruling.)
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So many great lawyers here on Substack. Thank you, Kim, for helping sound the alarm.
Thanks so much for all the work you do in order to put together such a splendid column for us, mam.