Trump immunity ruling invites presidents to commit crimes

By Timothy L O'Brien

The Supreme Court, in perhaps its most consequential decision about the powers and parameters of the US presidency, ruled on Monday that Donald Trump cannot be tried in a criminal court for any “actions within his conclusive and preclusive constitutional authority” while serving in the White House.

But any potentially criminal acts that were “unofficial” — that is, taken to promote his personal interests — are fair game, the court ruled.

The most direct result of the ruling is that Trump, a twice-impeached convicted felon, will not be tried before Election Day for his role in the events surrounding the January 6, 2021, siege at the US Capitol.

Federal prosecutors indicted Trump last August on multiple counts of electoral fraud related to his and his co-conspirators’ efforts to overturn the results of the 2020 presidential election, with January 6 featuring prominently in the charges.

The Supreme Court, in a 6-3 ruling that tracked its long-standing ideological divisions, sent the case back to District Judge Tanya Chutkan to be reconsidered and revised.

In practice, the Supreme Court ruling means that the case may never go to trial at all. The Department of Justice, under Attorney General Merrick Garland, is overseeing the prosecution, and attorneys general are appointed by presidents and serve at their discretion.

Should Trump win the November election, he would most likely appoint an attorney general who would simply dismiss the case (as well as a separate and much-delayed case involving misappropriation of classified documents).

Poof, problem solved for Trump — but not for democracy and the future of the rule of law.

The US is in new legal and political waters now, and Chief Justice John Roberts’ court is providing the foundations for those changes in a blitz of rulings whose impact will take time to fully play out.

Even so, their significance is already discernible regarding the presidency. The worst outcome is that the Supreme Court’s immunity ruling may allow — and even encourage — presidents to commit crimes if they can simply say they were acting within the boundaries of “constitutional authority.”

Trump and his supporters have long held an imperial and authoritarian view of executive powers, one that corresponds more closely with monarchies than with a presidency tightly bound by the Constitution.

Now the nation’s highest court has laid some of the legal groundwork needed to eventually get there, even if it thinks it’s crafting clear guidelines around presidential authority.

“The president is not above the law,” Roberts wrote for the majority, reasserting a standard he has upheld previously in other Trump rulings.

There’s a catch, now, however, as Roberts also noted, “But Congress may not criminalise the president’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution.”

This is a reasonable view in theory, but in practice what those presidential “responsibilities” are will be open to each executive’s interpretation — and the interpretations are invitations to extremes.

Look no further than the musings of Justice Samuel Alito during oral arguments in April that preceded Monday’s immunity ruling.

“If an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilises the functioning of our country as a democracy?” he asked.

In other words, immunity may be necessary to encourage presidents who may have committed crimes to leave office peacefully with the understanding that their successors can’t prosecute them.

This is truly an upside-down world to a certain extent, and I suspect future immunity rulings — imposed only after any number of presidents have already tested the boundaries of the law and civil society — won’t be as clear-cut or preventative as Roberts and his allies on the court believe.

After all, the ruling protects not only core “official acts” but prevents evidence linked to those acts from being introduced as evidence in a criminal case.

(The court already ruled decades ago that presidents are immune from civil charges.)

That protection extends to what the court described in its ruling as the “outer perimeter” of presidential duties. Leave it to rogue presidents to define “outer perimeter” in the most generous and expansive of ways.

In that world, for example, Roberts said it’s fine to consider whether it was acceptable for Trump to pressure former Vice President Mike Pence not to certify the outcome of the 2020 election.

Roberts posits that encouraging Pence to do so amounted to official conduct (which I would dispute). Even so, Roberts said it’s still open to interpretation as to whether it’s official conduct so central to presidential powers that Trump deserves absolute immunity from crimes associated with it.

Again, this could all get topsy-turvy in the real world.

Roberts also had doubts about whether Trump could be prosecuted for speeches and tweets related to the January 6 uprising, some of which encouraged protesters to march on the Capitol and others that claimed that 2020 election was rigged.

In Roberts’ understanding, nearly everything a president says publicly inhabits that protected realm known as “the outer perimeter of his official responsibilities.”

Trump had already lost the 2020 election when he whooped it up on the Ellipse on Jan. 6, and he was about to leave office. But he was, technically, still the president. So anything goes, perhaps.

Unless Trump was not acting as a president but as a “candidate,” Roberts allows. How are we to determine the distinction? This is nebulous stuff, and it’s going to cause misery, I imagine. Justice Sonia Sotomayor allowed for as much in her dissent.

“Looking beyond the fate of this particular prosecution, the long-term consequences of today’s decision are stark. The court effectively creates a law-free zone around the president, upsetting the status quo that has existed since the founding,” she observed.

“This new official-acts immunity now ‘lies about like a loaded weapon’ for any president that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation.”

Hold on to your hats. There’s a wild ride ahead.