Chicago (Special to Informed Comment; Feature) – The MAGA Supreme Court created a lawless presidency with their opinion on Trump immunity last week. In doing so, it obliterated a basic principle of American constitutional government: “No one is above the law.” Enabling abuses of power, the 6-3 decision on Trump v. United States gives Trump such vast immunity from prosecution that there are few legal checks on his egregious behavior if he returns to the White House. The Court’s three liberals strongly dissented, with Justice Ketanji Brown Jackson calling the opinion a “five-alarm fire that threatens to consume democratic self-governance and the normal operations of our government.”
In an appalling finale to the Court’s term, the conservative majority — three of whom were appointed by Trump — said that “official acts” that are central to the presidency are given “absolute immunity.” Other acts, even those at the “outer perimeter” of a president’s official duties, are “presumptively immune,” making them extremely difficult to prosecute. What is truly startling is not only the protection the Court has afforded Trump, but the unrestricted power it has granted him and his successors for whatever malice they might do in the future.
The majority opinion is “the most sweeping judicial reconstruction of the American presidency in history,” writes Princeton Professor of American History Sean Wilentz. Securing the monumental disgrace of the John Roberts Court, it has “seized the opportunity to invent, with no textual basis, a decision so broad that it essentially places the presidency above the law” and “invests the presidency with quasi-monarchial powers.”
The Justices have essentially legalized a losing president refusing to leave office. The defeated president can use his presidential authority to find an “official” pretext for remaining in office. While aspects of the Constitution and the Framers’ intentions are debatable, the Founders of the United States certainly did not design a constitutional system of checks and balances that established a government that would allow someone to declare themselves president for life if they felt like it.
Yet that is what the Supreme Court decision enshrines. In authoring the opinion, Chief Justice John Roberts often sounds like Trump’s lawyer rather than the impartial judge he pretends to be. He only provides a vague distinction between official and unofficial presidential acts, thereby bestowing full authority for any president to commit crimes up to and including assassination and treason with virtual impunity from criminal prosecution, as long as he can justify those crimes as part of his “official” duties.
By basing the possibility of any prosecution on this distinction and by then making that distinction virtually impossible to discern, Roberts eliminates any chance of resolving the underlying legal issues of Trump’s current federal prosecution before Trump has a chance to take power again. “The majority’s dividing line between ‘official’ and ‘unofficial’ conduct narrows the conduct considered ‘unofficial’ almost to a nullity,” writes Justice Sonia Sotomayor in her blistering dissent.If Trump wins, he can then — exercising the power of “absolute immunity” that the Court has conferred— dismiss the criminal investigations against him.
Roberts’s opinion illustrates just how broad this immunity will be in practice. He claims, for example, that Trump is absolutely immune from prosecution for any discussions involving Justice Department officials — even when he urged Justice Department officers to pressure states to “replace their legitimate electors” with fraudulent members of the Electoral College who would vote unlawfully to install Trump for a second term. Trump is absolutely immune from prosecution even when he told the Justice Department, “Just say that the election was corrupt and leave the rest to me and the R. Congressmen.” If Trump had ordered the Justice Department to arrest every Democrat who holds elective office, he could not be charged with a crime as this is considered “official” conduct.
Juan Cole, Digital Image, Dream/ PS Express, 2024
Fallout from the Trumpist Court giving its MAGA master royal immunity was immediate. Judge Juan Merchan put on ice Trump’s July 11 sentencing for 34 felony convictions because the Court decision could absurdly be used to define some of Trump’s actions as “official” acts. Though ridiculous on its face, the signing of the hush money checks to pay off a porn star to influence an election occurred inside the White House Oval Office, so this pay-off might be an “official” act.
Further, the ruling will remand Trump’s election subversion case, brought by Special Counsel Jack Smith, back to Judge Tanya Chutkan, in the D.C. District Court, to sort out what, if anything, is left of the indictment. Chutkan had previously rejected, and offered a sweeping condemnation of Trump’s immunity argument — one that constitutional law professor Michael Dorf also called “crazy.” The process will take lots of time and any ruling can be appealed, so the case will not go to trial before the election.
In the very week that the nation celebrated its founding, the Court undermined the reason for the American Revolution by giving presidents what Judge Sotomayor called a “law-free zone” in which to act, thus taking a leap toward restoring the monarchy that the Declaration of Independence rejected. The entire purpose of the Constitution was to create a government that was not bound to the whims of a king. Almost 250 years later, the Court’s self-styled “originalists” have put a crown within Trump‘s reach.
Presidents can still be impeached for their crimes in office, but it is hard to see how they can ever be prosecuted. The ruling creates a series of “nightmare scenarios” for what a president is legally allowed to do, writes Justice Sotomayor. “Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organize a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune, immune, immune.” She added: “The relationship between the president and the people he serves has shifted irrevocably. In every use of official power, the president is now a king above the law.”
Though the Court left open the possibility of prosecuting Trump for “unofficial acts” — such as, his conniving with campaign officials, it also implied that nothing a president does can be called unofficial. For example, the Extreme Court ruled that a president’s communications with the public likely fall “comfortably” within at least the “outer perimeter” of his official acts. And, in a another twist of the legal knife, the majority ruled that Trump’s “official” acts could not even be introduced as evidence in a trial against him.
That last twist was too much even for ultra-right Justice Amy Coney Barrett, who refused to join the majority in the ruling on evidence. She gave the example of how hard it would be to prosecute a president who takes a bribe for an official act. “The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable,” she wrote. But the decision of her five fellow-extremists would require such blindness.
The ruling even said that courts could not evaluate a president’s “motives” in determining criminal accountability. Considering an alleged criminal‘s motives is exactly “what the Constitution itself plainly calls for,” writes Yale University Constitutional Law Professor Akhil Reed Amar. “Essentially, the Court in Trump v. United States is declaring the Constitution itself unconstitutional. Instead of properly starting with the Constitution’s text and structure, the Court has ended up repealing them.”
Summing up the question of whether a former President enjoys immunity from federal criminal prosecution, Justice Sotomayor writes in her dissent, “The majority thinks he should, and so it invents an atextual, ahistorical, and unjustifiable immunity that puts the President above the law.” For a conservative majority that pretends to rely on historical precedent, the newly created standards are remarkable for their lack of basis in the Constitution, law or any precedent of the court. The immunity standards are pure fabrications.
The Supreme Court has intervened directly in the 2024 presidential campaign by shielding Trump from being tried on major federal charges before the November election. No previous Supreme Court has protected a political candidate in this way. This outcome benefits the Court’s preferred presidential candidate by defacing beyond recognition the Constitution and the concept of democratic self-determination. Trump poses a unique threat to constitutional government, but it’s one that the Trumpist Judges just happen to support. These aren’t Justices, they’re Trump cronies.
The outcome of the Court’s majority runs counter to the long-settled understanding of a president’s exposure to criminal prosecution, regardless of whether his acts were considered “official.” That understanding endured until last week. The outstanding example in living memory is the case of Richard Nixon, who accepted a pardon from President Gerald Ford to avoid criminal prosecution. Nixon accepted the pardon for his role in the Watergate scandal because everyone agreed that his actions were legally prosecutable. Yet Nixon’s criminal behavior could easily be misconstrued by the Roberts Court as official acts.
As the Nixon pardon made clear 50 years ago, the country understood well that ex-presidents could face trial for their crimes in office. Last Monday, the court radically redefined the settled understanding of the liability of ex-presidents, an opinion that contradicts the entire notion of a government based on the rule of law. The president can violate the law, exploit the trappings of his office for personal gain, and use his official power for malevolent ends. We want a president that is bold and fearless, even if he breaks the law in doing so. That is the majority’s terrifying message.
We have entered the era of the imperial presidency as well as the era of the “Imperial Supreme Court” as Stanford law professor Mark A. Lemly calls it. In casting aside the text, structure and history of the Constitution in favor of vague concerns about the need to “enable the president to carry out his constitutional duties without undue caution,” the Court reveals that it will rule — and rule us all — based on its own free-floating and distorted vision of an optimal constitutional order.
The immunity ruling reflects a massive Supreme Court power grab that is also evident in the recent Loper Bright decision that overturned a 40-year-old precedent — the Chevron deference. The decision took judicial power over federal agency regulations — transferring policy-making authority from agency experts to a judiciary that lacks the personnel and expertise to evaluate the overwhelming array of policy questions that arise from legal ambiguity.
The court’s three liberals denounced the ruling as a threat to American democracy by an un-elected branch of government. “A longstanding precedent at the crux of administrative governance thus falls victim to a bald assertion of judicial authority,” Justice Elena Kagan wrote in her dissent. “The majority disdains restraint, and grasps for power.”
In a further condescending flaunting of their power, Justices Thomas and Alito refused to recuse themselves from decisions related to any January 6 cases. Thomas’s wife — lawyer and activist Ginni Thomas — denounced the “fascist left” and posted on Facebook “love MAGA people!!!” on January 6. Connected to Trump’s coup attempt, she was implicated with the fake elector schemers in Arizona. Alito — a flag-flying Christian Nationalist — is openly aligned with the Big Lie traitors, having allowed the upside-down American flag, the “insurrection flag,” to be flown in his yard during the 2021 Capitol violence.
The anti-democratic determination by these Trump-supporting, Supreme Frauds could not come at a more dangerous time for democracy. The ruling has removed a major check on the office of the presidency at the very moment when dictator-for-a-day Trump is running for office on a promise to weaponize the apparatus of government against those he views as his enemies. The Trumpified Court’s decision that grants imperial powers to a future unscrupulous President Trump has raised the stakes of the election tremendously, and they were already too high. If Trump wins, he will have the presidency Nixon wanted, one in which nothing the president does is illegal.
The Court’s decision inflates the significance of Biden’s political self-immolation at the recent debate, in which the President spent much of his 90 minutes on stage staring into the middle distance, mouth agape, reiterating “the very idea” as if he was surprised and stunned by Trump reeling off lie after lie and insult after insult as he has done for years. When Biden did speak, his voice was shaky, and he sometimes lost his train of thought. Biden’s meltdown increased the wannabe tyrant’s chance of winning, according to the liberal Brookings Institute.
Now, while the convicted GOP candidate has been invested by the MAGA court with kingly powers, the Democrats are dithering about whether their impaired candidate is the best person for the job of running against the felon. The Court decision shows — if voters did not know it before — the incredible importance of putting progressive justices on the Supreme Court.
The next president might very well get two appointments to the Supreme Court — Thomas is 76 and Alito is 74. If a Democrat wins, he or she might possibly appoint two replacement justices that would return the court to a liberal majority, 5-4. If Trump wins, the 6-judge majority will be chosen by a racist mob boss and the Christo-fascist Federalist Society.
The Trump Court’s decision is not only a grant of immunity for past crimes, but is also an enthusiastic endorsement of the despotic power that Trump has vowed to assert. Promising “retribution” against his opponents, he will turn the Justice Department against critics. For example, he wants to subject Liz Cheney to a televised military tribunal on uncertain charges. Trump also said that he “has every right to go after” Joe Biden and his family.
The Supreme Court essentially gave him the green light to do that as part of his “official” duties. The combination of new judicially invented presidential immunity and the longstanding pardon power means that a future Trump White House could become the site of a criminal enterprise that would make Richard Nixon’s Watergate Scandal look trivial.
Raging xenophobe Trump promises that he will set up vast camps and illegally deport millions of people from the U.S. He could invoke the Insurrection Act and use troops to lock down the southern border or crush protests. He’d stretch the powers of the presidency in ways not seen in our lifetime. He says this consistently and clearly — so it’s not conjecture.
The Supreme Court has radically changed the very structure of American government paving the way for MAGA authoritarianism. Though mind-bogglingly insane, a moronic conman has used his vile narcissism and pathological mendacity along with a maniacal cult to put him on the verge of having complete control of all three branches of the U.S. government. We need a France-like, anti-authoritarian voter turnout to stop the Gangster President.
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