On one hand, we should have seen it coming. The current crop of justices who make up the majority on the United States Supreme Court have shown, repeatedly, that the only things they truly care about are protecting Donald Trump from his own worst instincts and hastening society’s march toward Gilead. In that context, today’s ruling makes perfect sense.
Yet, even among the most cynical court watchers, there was a sliver of hope that the court might find a way to punt on the question of presidential immunity, if only to save whatever shred of dignity SCOTUS still possessed. The theory was that the high court would kick the case back to a lower court to define what an “official act” of the president was and list which of Trump’s actions on January 6, 2021, met that definition. That way, the case could simply fizzle out behind the scenes if Joe Biden wins re-election, while SCOTUS could still save Trump post-election if he wins. That’s not exactly a healthy way to run a court system or a democracy, but it was a way to toss a pool floatie to America as she struggles to tread water.
Instead, the Supreme Court on Monday tossed her an anvil. Chief Justice John Roberts, joined by the court’s five other overtly partisan conservatives, held that, as president, Donald Trump had absolute immunity from criminal prosecution for “official acts.” Taking it a step further, the court held Trump’s attempts to have then-Veep Mike Pence and the Department of Justice overthrow the United States government by interfering with certification of the election was an “official act,” as was talking to advisers and making public comments about his options to stop the peaceful transition of power in 2021.
Classifying Trump’s communications about trying to overthrow the government as “official acts” is an important piece of the whole opinion, too. According to Roberts, while a president has no immunity for “unofficial acts,” courts and prosecutors cannot use what a president said or did about anything as evidence that an act was “unofficial.”
If this all seems Very Terrible and fall-of-the-Republic-y, that’s because it is.
The first important takeaway from the decision is the totality of its reach. The Supreme Court did not simply say Trump was immune from prosecution for specific actions or create a narrow, qualified immunity based on the specific facts of any of the charges against him. Rather, they held that a president has absolute immunity for all official acts.
Absolute immunity is just what it sounds like: absolute. It cannot be waived, either explicitly or implicitly. Unlike qualified immunity, absolute immunity cannot be overcome by a particularly heinous set of facts. Also unlike qualified immunity, which only shields public officials from civil liability for certain actions, absolute immunity extends to criminal charges as well.
Perhaps most depressingly, the absolute immunity SCOTUS created for Donald Trump today cannot be overcome by Congressional action in the future. Trump’s absolute immunity, Roberts explained, derives from the U.S. Constitution’s guarantee of separation of powers. If Congress could pass a law that allowed prosecution of a president for official acts when those acts are criminal in nature, that law would be unconstitutional on its face according to today’s decision.
Prior to today’s ahistorical decision, it was generally assumed that a sitting president might be immune from prosecution while in office, but that those protections disappeared once his term ended. (A handsome law student even wrote his law review note about that very topic in the context of the Iraq War back in 2006.) This assumption was based on earlier Supreme Court decisions, all of which SCOTUS ignored today.
In U.S. v. Nixon, the court rejected the idea of absolute immunity for presidents, holding that “neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances” because such an “absolute privilege … would plainly conflict with the function of the courts under Art. III.”
Eight years later, in Nixon v. Fitzegerald, while the court held that Richard Nixon was entitled to absolute immunity in civil court for damages related to his official acts, they were careful to note the limited scope of the ruling. “It is settled law that the separation-of-powers doctrine does not bar every exercise of jurisdiction,” the court said.
Fifteen years after that, in Clinton v. Jones, the court explained, “when the President takes official action, the Court has the authority to determine whether he has acted within the law.”
Reaction to the ruling on social media (outside of MAGA circles, at least) has bounced between depression about the ever-quickening decline of American democracy and facetious tweets about how Biden could use today’s ruling to nuke Mar-A-Lago/have Seal Team 6 take out Trump/send SCOTUS justices to Guantanamo. Potential merits of these ideas notwithstanding, such suggestions overlook two equally important realities: 1. There’s no evidence across his decades of political service that Biden will do anything about this ruling beyond trying to fundraise off of it while decrying the political nature of a court that has been increasingly political since the mid-90s; 2. Anyone who thinks SCOTUS would find Biden has the same “absolute immunity” for overtly criminal acts must’ve been born yesterday, so happy birthday, but I’m sorry to burst your bubble.
There will, of course, be pushback from the usual conservative mouthpieces on the idea that today’s ruling is another hollow cough in America’s long death rattle. They will point out that today’s opinion still allows a president to be prosecuted for unofficial acts, so today’s decision is no big deal. They will even note that SCOTUS sent the case back to district court so the judge there could decide if any of Trump’s actions were “unofficial.”
Guests on Sinclair-owned stations will say with a credulity so dense it could bend space-time, this ruling is no big deal because the district court could still find some of the actions were subject to prosecution, just as our founders intended!
But the framers clearly intended that a president could be prosecuted for criminal acts, regardless of the capacity in which they were performed.
The constitution’s impeachment clause specifically refers to “treason, bribery, or other high crimes or misdemeanors” as a basis for impeachment and removal from office. It does not condition impeachment on whether the treason, bribery or other crimes were done as part of an otherwise “official” act. If the president can be removed from office for committing a crime, it is illogical to pretend like the framers did not intend that the same president could be prosecuted for that crime when he’s out of office.
By holding that both Trump’s private conversations and public statements on Jan. 6 were “official acts” and could therefore not be used as evidence against him, SCOTUS left the American justice system virtually powerless to hold a president accountable.
Anyone you hear in the coming days and weeks saying that today’s ruling did not give Trump absolute immunity either doesn’t know what they’re talking about or they’re lying to you. There is no third option.
Two lifetimes ago, I worked in a daycare for a few years while I was in college. I mainly dealt with 3- and 4-year-olds, and it was a wonderful job, all things considered. One of my favorite things about watching kids that age play together is how quickly they completely overhaul the rules of whatever game they’d made up any time the existing rules led to an absurd result. Some kid claims he has a force field? Oh well, the other kids just did some direct democracy and decided force fields aren’t allowed!
At the heart of every rule change, however, was fairness — the idea that no one should win the game just because they found some loophole to exploit, because that wouldn’t be fair to everyone else who was playing by the letter and spirit of the rules. Today, the Supreme Court of the United States showed the world that they care less about right and wrong than a bunch of 4-year-olds in Kansas City did two-plus decades ago.
Teddy Roosevelt once said, “No man is above the law and no man is below it: nor do we ask any man’s permission when we ask him to obey it.” Thanks to John Roberts, that sentiment is now demonstrably untrue.