There’s Another Way Trump Could Get Immunity
Re-election would make him virtually untouchable.
SPEAKING JUST AFTER THE SUPREME COURT issued a per curiam ruling that Colorado may not remove him from the presidential ballot, Trump took a victory lap proclaiming himself “honored” by the unanimous vote. Apparently interpreting the Court’s action as a personal vote of confidence, he pushed his luck, urging the justices to rule swiftly that he has absolute immunity as well.
That is not likely. Most observers thought the Court would reject Colorado’s action because permitting it would have invited chaos in the middle of an ongoing election and because the Court husbands its legitimacy. Had it upheld Colorado’s disqualification, the Court would instantly have become a hate object for 70 percent of Republicans, who would have perceived its ruling as baldly political (notwithstanding the Court’s 6–3 conservative majority) denying to voters their free choice of candidate. It would have been particularly hard for conservative justices to square an affirmation of the Colorado Supreme Court’s decision with their reasoning in Dobbs that most decisions are best left to the people and their elected representatives, not to unelected lawyers in robes.
The presidential immunity claim is another matter (though Philip Rotner notes that the logic of the immunity case wrong-foots the justices vis-a-vis Dobbs in a similar way to the Fourteenth Amendment case). A ruling that completely adopted Trump’s position in that case would essentially gut the Constitution, permitting a president to accept bribes, use taxpayer money to build a series of palaces for himself all over the world, or arrest and torture his critics. As the D.C. Circuit Court put it:
At bottom, former President Trump’s stance would collapse our system of separated powers by placing the president beyond the reach of all three branches. Presidential immunity against federal indictment would mean that, as to the president, the Congress could not legislate, the executive could not prosecute and the judiciary could not review. We cannot accept that the office of the presidency places its former occupants above the law for all time thereafter.
The Supreme Court will probably use similar language when it gets around to deciding the matter. But here’s the rub: If Trump is re-elected in November, he will essentially have total immunity, regardless of what the Court says.
A re-elected Trump would have the voters’ imprimatur for lawlessness. If he wins in November, the message from voters will be: Yes, we know he mishandled the most sensitive classified documents and obstructed justice rather than return them. And we know he was found by a jury to have committed sexual assault. And we know he attempted to extort an ally to announce a fake investigation into his chief political rival. And we know he caused the deaths of millions of COVID patients by lying about the threat of the virus and discouraging precautions. And we know he invited his followers to threaten and harass innocent election workers, secretaries of state, and governors. And we know he bellowed that the chairman of the joint chiefs of staff should be executed for treason for differing with him. And we know that he called for shoplifters to be shot on sight and said the Constitution should be terminated. We know he said he’d be a dictator for a day. Above all, we know that he attempted to subvert the peaceful transfer of power and remain in office despite the will of the people. And we chose him anyway. Re-election would grant absolution for all of it.
The supposed guardrails of democracy are already creaking and groaning at the prospect of another Trump term. Just look at the state of the GOP. Despite all of the foregoing, Republican senators, who should be thinking of the health of the republic, are lining up to endorse Trump—not because he’s the president, but just because he might be. As a “might be” president, he is already able to dictate the composition of the Republican National Committee, rig a primary in Nevada, kill a border bill that would have given Republicans 90 percent of what they’ve been demanding for years, and undermine Republican support for Ukraine.
Now imagine that Trump is president again and instructs the Justice Department to bring treason charges against Jack Smith. Who will stop him? The carefully vetted MAGA lawyers he has hired precisely for their loyalty?
Suppose he orders the Department of Homeland Security to round up and deport 11 million immigrants without due care to ensure that American citizens aren’t swept up? What will Congress do? Impeach him?
What if he instructs the IRS to audit and fine Liz Cheney, Adam Schiff, George Conway, and hundreds of other prominent critics? This violates IRS rules. But will IRS employees, again hired for loyalty to Trump, demur? After all, he did run on the promise, “I am your retribution,” and his voters agreed.
What if he directs the SEC to investigate banks that refuse to loan the Trump Organization money? Would any whistleblower risk his job or worse?
What if, in response to street demonstrations, Trump invokes the Insurrection Act and federalizes the national guard, allowing the military to shut down protests and arrest (or worse) demonstrators without cause?
This is by no means an exhaustive list. The possible abuses of power are limitless. In Trump’s first term, he was partially thwarted by strong institutions, yes—but above all by a deep commitment to the rule of law among the citizens of this country. A mid-level NSC staffer found the courage to defy the president’s illegal and immoral acts because of his deep faith in the people’s values. As Alexander Vindman said to his father, who, having grown up in the totalitarian USSR, worried about what might happen to his son for opposing the president, “Do not worry, I will be fine for telling the truth.”
Except he wasn’t. Not quite. He and (for spite) his twin brother were fired from the NSC. His military promotion was put on hold. He was harassed. It would be far far worse in a second Trump term. Would there even be Alexander Vindmans in a second Trump presidency?
Doubtful. The mob justice that Trump has practiced and been rewarded for would intimidate nearly all. And they would not be enough to preserve constitutional democracy.
As Judge Learned Hand said in his 1944 “Spirit of Liberty” speech:
I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it.
On April 22, the Supreme Court will hear arguments on presidential immunity and will perhaps issue a ruling full of pious talk about the rule of law. But the words will be empty if Trump is elected.