Illustration by Greg Houston
This article appears in the August 2024 issue of The American Prospect magazine and was written before the July 13th assassination attempt on former President Trump.
The full implications of the Supreme Court’s decision on presidential immunity in Trump v. United States will take time to sink in. By failing to rule on the case expeditiously, the Court had already effectively shielded Donald Trump from prosecution before the next presidential election for trying to overturn the last one. The shock from the decision was less the protection it gives Trump for what he did in the past than the protection it gives him and others for what they may do as president in the future. The ruling, as Justice Sonia Sotomayor spelled out in her powerful dissent, “makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.”
To shield the president from criminal prosecution is to put everyone else, and all of our institutions outside the government, at greater risk of abuses of power. The Court’s decision provides a license for presidential vengeance and intimidation, and it does so at a moment when a man standing on the threshold of the presidency shows every intention of using that license.
Many people may have shrugged off Trump’s repeated promises of “ultimate and absolute revenge,” and his interest in using the Justice Department to prosecute his enemies if he wins the election. Just recently, he was circulating social media posts calling for “televised military tribunals” and the jailing of Joe Biden, Kamala Harris, Mitch McConnell, Chuck Schumer, Mike Pence, Nancy Pelosi, and Liz Cheney, as well as other members of the House select committee that investigated the January 6th insurrection.
These threats may seem outlandish, but we now have one more reason to take them seriously. We already knew that in a second Trump term, the people in the White House and Cabinet who restrained him the first time would be gone. We already knew from his two impeachment trials that Senate Republicans would make impeachment an ineffectual check. And now, by ruling that he has no reason to fear prosecution for criminally abusing the power of the presidency, the Supreme Court has eliminated one additional check.
The ruling is specifically relevant to Trump’s potential ability to use the powers of the Justice Department to threaten and intimidate anyone who gets in his way. The federal government’s prosecutorial powers, the decision states, fall under the president’s core functions, and a president cannot be held criminally liable for any use he makes of that power. Although the Court is vague about the exact limits of presidential immunity, it is unambiguous on this point: “Because the President cannot be prosecuted for conduct within his exclusive constitutional authority, Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.” No matter that in this case Trump told Justice Department officials to make groundless statements that the 2020 election was rigged. Information about those discussions cannot even be entered as evidence as part of a prosecution for unofficial acts he undertook to overturn the election.
The Court’s decision nullifies what once seemed like a national consensus about the appropriate limits of presidential power in the wake of Watergate.
If what Trump says to Justice Department officials can never be a basis for prosecuting him, he and all future presidents are free to demand that those officials undertake investigations of an administration’s enemies and instigate sham prosecutions. And if presidents can make those demands of the Justice Department with impunity, they can make similar demands of the FBI, IRS, and other agencies to harass, intimidate, and punish people opposed to the incumbent. The Court is unambiguous about the president’s total authority over the executive branch.
“The main takeaway of today’s decision,” Sotomayor writes, “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.’”
There are two key distinctions here—the distinction between “official” and “unofficial” acts and between “absolute” and “presumptive” immunity—but neither offers much hope of reining in a president intent on criminally and corruptly abusing power.
The way the Court now draws the distinction between official and unofficial acts defines a much broader range of conduct as an “official act” than the Court did in a 2016 case, McDonnell v. United States, concerning the conviction of a former Republican governor of Virginia, Robert F. McDonnell, for corruption. In that case, the Court narrowly defined an official act as a decision or action on a “question, matter, cause, suit, proceeding or controversy,” involving a “formal exercise of governmental power.” To qualify as an “official act,” the action taken by a public official had to involve acting on a matter before the government, not merely, as the case was with McDonnell, setting up a meeting or talking with other officials about it. By narrowly defining official acts in that context, the Court made it more difficult to convict public officials of corruption—one of a series of such decisions, all consistently shielding officials from accountability to the criminal law.
The Court’s ruling in Trump v. United States achieves the same result—that is, limiting official accountability to the criminal law—but it achieves that result in the opposite way. In this case, the Court holds that presidents have at least “presumptive” and possibly “absolute” immunity for all official acts, so the Court defines official acts broadly. While the Court says that absolute immunity applies to the core areas of presidential authority, it says that presumptive immunity applies to the “outer perimeter” of the president’s functions. And that outer perimeter, it makes clear, is very wide.
The Court’s decision notes that the indictment of Trump “contains various allegations regarding Trump’s conduct in connection with the events of January 6 itself. The alleged conduct largely consists of Trump’s communications in the form of Tweets and a public address.” It then points out, citing an earlier case, that the president possesses “extraordinary power to speak to his fellow citizens and on their behalf”; therefore, “most of a President’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities.” While the Court notes that the president also speaks in unofficial capacities, it suggests that the lower court must undertake a close analysis of the facts in every instance to determine whether a communication is an official one. Gone are the strictures in McDonnell about how narrowly official acts should be defined.
Sotomayor points out that “the majority’s dividing line between ‘official’ and ‘unofficial’ conduct narrows the conduct considered ‘unofficial’ almost to a nullity. It says that whenever the President acts in a way that is ‘not manifestly or palpably beyond [his] authority,’ he is taking official action.” And she points out that the distinction between “presumptive” and “absolute” immunity also offers little comfort because the Court’s decision makes it extraordinarily difficult to overcome the presumption.
One of the effects of the Court’s decision is to nullify what once seemed like a national consensus and clear public norms about the appropriate limits of presidential power in the wake of the Watergate scandal. Richard Nixon had clearly abused the powers of his office by enlisting the Justice Department and IRS in attacks on his enemies; the post-Watergate norms called for presidents to desist from directly controlling individual investigations and prosecutions. In contrast, the Court’s decision is an emphatic endorsement of the “unitary” theory of the executive, the idea that there is no independence from the president within any part of the executive branch. Now the Court adds that a president need not worry about any limits from the criminal law about corrupt demands on the very agencies that were instruments of Nixon’s abuse of power.
Trump and other Republicans have made no secret about the many people and institutions they consider to be their enemies. Journalists, Trump has often said, are “the enemy of the people.” With much of the media in a precarious financial position, they make an easy target. Colleges and universities make another vulnerable target. Many are also in financial straits, and even if they are private, they are vulnerable to government pressure because they depend on government funds for research that can be cut off. The whole nonprofit sector, especially nonprofits that are active on political issues, is vulnerable because of potential jeopardy to their tax exemptions, as my colleague Robert Kuttner explains in this issue.
We have lived in a relatively free society because of legal and normative restraints on the power of the government. The commentators who have talked about the Court’s decision as a prescription for dictatorship are not overstating the case. That is what the Court has produced. If Trump has a second term, the institutions and the people who stand up against him should be prepared for a full-fledged attack with all the powers of the government arrayed against them. We have already seen the entire Republican Party cowed and brought under Trump’s thumb. The rest of the country could soon face the test of courage that the Republicans have failed.
