In Granting Huge Win to Trump, Supreme Court Protects Future Criminal Presidents

One after another, we’ve seen the remedies for reining in an abusive president prove useless.

(Composite / Photos: GettyImages /Shutterstock)

AND NOW THE DEED IS DONE. The Supreme Court has put a torch to the first principle of constitutionalism—that no person, no matter how powerful, is above the law. Monday’s ruling in Trump v. United States holds that so long as presidents operate within their “core” responsibilities, and often when they are at the outer edge of their duties, they are immune from prosecution.

In the short term, it is the death-knell for any trial of former President Donald Trump on January 6th-related charges before the presidential election. Special Counsel Jack Smith may still be able to proceed with a slimmed-down trial of the sort that he laid out in his brief to the Supreme Court, but not in time for voters to hear before Election Day whether a jury has found Trump guilty of trying to illegally overthrow the 2020 election.

With friends like this on the Court, who needs to pay off Stormy Daniels to keep voters from having full information about a presidential candidate before the election?

The Court’s analysis of presidential immunity involves three steps. First, if an indictment alleges misconduct involving the powers that belong exclusively to the president—the office’s “core constitutional powers”—a president is absolutely immune.

Second, if the allegations fall “within the outer perimeter” of a president’s responsibilities that are not preclusive, a president is presumptively immune. That means he is free to commit crimes in this undefined area unless a prosecutor can rebut the presumption by showing that the action was actually not official.

Good luck doing that in a way that survives this off-the-rails partisan majority’s apparent interest in policing any matter that could adversely affect Donald Trump.

Finally, if the alleged misconduct is indisputably private, the prosecution may go forward.

So in practice, the Court gives presidents absolute immunity for the exercise—even the abusive exercise—of “core” responsibilities, including the pardon power and a president’s appointment power. Thus, if Donald Trump returns to the presidency, he could auction off to the highest bidder a vacant Supreme Court seat or the position of chairman of the Joint Chiefs of Staff. He could even do it on the QVC channel with no risk of prosecution—because it involves a “core” presidential responsibility.

That’s not all. The near-absolute immunity that the ruling affords for anything “within the outer perimeter” of a president’s official responsibilities could shield from prosecution a president who orchestrated a scheme of fraudulent electors, since the justices tell us that that conduct is immune unless the special counsel can show it was a purely private action. Indeed, by Monday evening, an attorney for Trump was promising to argue before the district court that the fraudulent-electors scheme should count as an official, and therefore immune, presidential action.

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IF THERE IS ONE SILVER LINING in the court’s decision, which sends the case back to the district court for factual findings as to which acts on which Trump is immune or not immune, here it is: There can now be a full hearing on any acts other than those deemed within the “core” of a president’s duties.

That includes Trump’s fraudulent-elector scheme.

Such a hearing could happen before the election. Count on Trump’s lawyers to do everything in their power to prevent it—but if they fail, as they should, a lengthy evidentiary hearing would give the American people the same kind of significant information about the former president’s wrongdoing as was displayed at Trump’s Manhattan trial, where he was ultimately convicted on 34 felony counts.

But here’s the rub. Although Trump’s lawyer conceded that the fraudulent elector scheme was unofficial or private conduct, the Court’s right-wing majority refuses to accept it, saying in essence: Hold on. Trump’s counsel said other things that might cast doubt on the concession. So, hey, why not give a convicted felon like Trump the benefit of the doubt and not allow those charges to go forward without an evidentiary hearing first?

As Justice Ketanji Brown Jackson writes in her dissent, “The practical consequences are a five-alarm fire that threatens to consume democratic self-governance.” She continues:

Even a hypothetical President who admits to having ordered the assassinations of his political rivals or critics . . . or one who indisputably instigates an unsuccessful coup . . . has a fair shot at getting immunity under the majority’s new Presidential accountability model.

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COMMON SENSE, ALONG WITH principled constitutional decision-making, has fled the Supreme Court building in favor of partisan enabling of Trump, the man who would be king.

When the Framers of the Constitution explained why they fashioned a system of checks and balances, they did so, in James Madison’s words, because they understood that mortals in public office are not “angels,” and that the people need to be protected against leaders who operate on the dark side of human nature. Ignoring this fundamental principle of practical government, the majority has cravenly put dictatorial power in the hands of a once-and-possibly-future president unlikely to be confused with an angel.

No court has ever before held a president immune from a grand jury’s indictment. That is because until Monday, we believed that no person was above the law. That principle has now died an untimely death.

A president’s most basic constitutional duty is to “take Care that the Laws be faithfully executed.” That responsibility is facially inconsistent with the decision’s premise that the president may violate the law with impunity so long as he is doing so within the “core” of his official duties.

One of us (Lacovara) was special counsel to the Watergate special prosecutor and can say with authority that during Watergate, no one, including President Richard Nixon, ever imagined, much less argued, that a president had to be privileged to violate criminal law to function as president. That’s why Nixon needed to be pardoned by his successor, President Gerald Ford.

Monday’s decision has dropped to the pavement the constitutional guardrails on abuse of presidential power, endangering the freedom of every person in this country who dares to speak out against a would-be autocrat.

What are the remaining remedies for presidential misdeeds and criminality in that “core” zone of official presidential action? The remedy of impeachment was unmasked in the Trump years as toothless. That leaves only the remedy identified by Justice Brown:

As we enter this uncharted territory, the People, in their wisdom, will need to remain ever attentive, consistently fulfilling their established role in our constitutional democracy, and thus collectively serving as the ultimate safeguard against any chaos spawned by this Court’s decision.

She’s talking about this election, friends. Trump has already told us that if elected, he aims to terminate the Constitution, to be a dictator on Day One, and to wreak vengeance on his political rivals and critics.

Voters can keep such aspiring autocrats from office. And in the future, should Trump or some other demagogue be elected, voters can theoretically throw out a criminal president—unless that president succeeds in overturning the election, which is exactly what Trump was trying to do in 2020. And exactly what the Court’s ruling makes exponentially more likely in the future.