WASHINGTON – In his dissent from a Supreme Court opinion that provided former President Donald Trump with broad immunity, Judge Sonia Sotomayor considered the potential consequences of the final judgment: A president could pocket a bribe to obtain a pardon, stage a military coup to maintain power, order the assassination of a rival by Navy SEAL Team Six — and be protected from prosecution for all of it.
The scenarios may seem like part of an apocalyptic future. But the stark reality of the 6-3 opinion is that it ensures that presidents have wide latitude to carry out official acts without fear of being criminally charged and may embolden Trump, who was accused twice It is faced four separate lawsuits over the past year and a half as he contemplates a return to the White House.
The result is significant because Trump, the presumptive Republican nominee, it was public about wanting to pursue the same boundary-shattering conduct that defined his four years in office, generated criminal and congressional investigations and raised new questions about the scope of presidential immunity that were resolved largely in his favor in Monday’s historic opinion.
“In the long term, I think it will expand what presidents are willing to do, because they will see that there is a gray area that the Supreme Court has established,” said Julian Zelizer, a professor at Princeton University who studies political history. The effect of the opinion, he said, will be to “widen the scope of what will be permitted” and give presidents sufficient cover for acts that could veer into criminality.
O opinion authored by Chief Justice John Roberts did not rule out the case accusing Trump of plotting to overthrow the 2020 presidential race, as Trump wished, and left intact the long-established principle that there is no immunity for purely personal acts. But he significantly narrowed the case by concluding that presidents enjoy absolute immunity for their fundamental constitutional duties and are entitled to the presumption of immunity for other official acts.
“This is a full endorsement of the unitary executive theory” in a dramatic way, said Cornell University law professor Michael Dorf, referring to the theory that the U.S. Constitution gives the president expansive control over executive power. from the government.
From a practical perspective, the court’s opinion means that trial judge Tanya Chutkan must now undertake a more in-depth analysis of the facts to determine how much of the conduct alleged in Special Prosecutor Jack Smith’s indictment can continue to be part of the case.
It is important to Trump that the one area that the conservative majority said was unquestionably off limits to prosecutors was his command and communications with the Justice Department.
This includes his directives to department leadership after the 2020 election to conduct what prosecutors called “sham” investigations into false claims of voter fraud, as well as his attempts to use the department’s authority to advance his unsuccessful efforts. to remain in power.
While the opinion does not create new laws regarding the interaction between the White House and the Department of Justice, Roberts said that a president has “sole authority over the investigative and prosecutorial functions of the Department of Justice and its employees” and can also “discuss potential investigations and prosecutions with his attorney general and other Justice Department officials to fulfill their constitutional duty to ‘take care that the laws be faithfully executed.’”
“I think this is a norm-breaking opinion, and I can imagine Trump using this as the basis for a complete destruction of the DOJ’s independence,” said Boston College law professor Kent Greenfield.
This position by the nation’s highest court is welcome news for Trump, especially as he and his allies have suggested they want to use the power of the presidency — including, presumably, the Justice Department’s investigative authority — to pursue retribution against enemies. politicians.
After him May’s conviction in his New York silence case, Trump suggested he might try to retaliate against Hillary Clinton, his 2016 opponent, if he returned to the White House.
“Wouldn’t it be terrible to throw the president’s wife and the former secretary of state, think about it, the former secretary of state but the president’s wife, in prison? Wouldn’t that be a terrible thing? But they want to do it,” Trump said in an interview with Newsmax. “It’s a terrible, terrible path they’re taking us down. And it is very possible that this will have to happen to them.”
More recently, he reposted a meme that suggested that former congresswoman Liz Cheneywho, as the third Republican in the House, broke with his party and voted to impeach Trump in Riot of January 6, 2021 at the US Capitol, committed treason and was due to face a military tribunal.
The posts and comments raise concerns given how Trump’s interactions with the FBI and Justice Department as president broke long-standing norms and became central to special counsel Robert Mueller’s investigation into whether he obstructed an inquiry into Russia’s possible coordination with his 2016 presidential campaign.
trump urged his then-FBI director James Comeyto close an investigation into a close ally and fire him weeks later, berated his hand-picked attorney general, Jeff Sessions, for refusing to participate in the Russia investigation and also calling for Mueller’s resignation.
In his report, Mueller did not reach a conclusion about whether Trump had illegally obstructed the investigation, refusing to reach a conclusion in part due to a Justice Department legal opinion that sitting presidents cannot be indicted. . But he said presidents were not “categorically and permanently” immune from obstructing justice by using their presidential power.
It is true that there are still safeguards that could prevent most presidents from testing the limits of criminal immunity. The threat of impeachment by Congress remains – Trump was impeached in a phone call with the leader of Ukraine on January 6, but was acquitted by the Senate – as do the practices, protocols and norms that govern Washington’s bureaucracy.
Roberts, for example, sought, in his majority opinion, to minimize the impact, saying that Sotomayor was reaching “a tone of frightening condemnation that is completely disproportionate to what the Court actually does today.”
But even if the scope of presidential power is not directly expanded by the opinion, there is no doubt that the decision could benefit any future president determined to abuse those powers.
“Not every president will take advantage, but I think the lesson from Donald Trump is: Someone can,” Zelizer said. “Or the lesson of Richard Nixon is: anyone can. And the ‘one mights’ are the lessons you’re looking for.”
