Supreme Court Decision | Trump, President-King

Since Monday 1^is July 2024, Americans are no longer living under quite the same presidential regime. The United States Supreme Court, as Donald Trump requested, has decreed that the president enjoys almost total immunity from criminal prosecution for acts committed “in the exercise of his functions.”

“Whenever he uses his official power, the president is now a king above the law,” dissenting Justice Sonia Sotomayor wrote bluntly in a very serious opinion. She concluded “with fear for democracy.”

Too alarmist? I don’t think so. Donald Trump could hardly have hoped for better. He has won everything, or almost.

It will be said that there are checks and balances against the president. Congress. The judges. But there are also checks and balances against a vengeful exercise of partisan criminal prosecutions against political opponents. With presidential immunity, what is the limit to criminal actions to prevent the transfer of power after an election? Even after various acts of massive corruption committed in the exercise of a president’s functions?

It is now virtually impossible for Donald Trump’s primary trial to take place this year—for trying to block the certification of Joe Biden’s election. If it does happen, the new guidelines make the job of prosecutors extremely complicated. A cascade of challenges to what is an “official act” of the president and what is not is easily imagined.

Because that is the rule for the majority: a president is absolutely protected from any criminal prosecution for an “official act.” And for an act of the president committed outside his exclusive functions, there is now “at least a presumption of immunity.” It will be up to the prosecutor to demonstrate that a criminal charge does not hinder the exercise of his executive powers.

Few expected the Supreme Court to go this far. At the hearing, Trump’s argument seemed to be received lukewarmly by the justices.

On Monday night, Joe Biden unsurprisingly rallied to Sonia Sotomayor’s opinion. He found a new argument for his re-election: now that judges no longer protect Americans from a criminal president, it becomes more necessary than ever to elect an honest candidate, who will not abuse his powers…

The six justices in the conservative majority, however, voted as a bloc, including Clarence Thomas, who even questions the legality of the appointment of the independent prosecutor. Thomas, whose wife texted President Trump’s chief of staff the very day of the storming of the Capitol, saying that the election was “a burglary,” and several of whom called for his recusal…

The majority accepted the idea of ​​Trump’s lawyers that a president who fears being charged with a crime would become “hesitant” and would no longer have the audacity necessary to carry out his demanding tasks.

Already, presidents cannot be sued in civil court for damages caused in the exercise of their functions. Otherwise, any citizen could drag them before the courts.

But in the past, Presidents Jefferson and Nixon had been forced by the Supreme Court to comply with an order to produce evidence in their possession — shielding certain communications. Since none of the other 45 presidents has faced criminal charges, the question of criminal immunity has never been decided.

“Nearly every president is accused of failing to enforce the laws adequately,” Chief Justice John Roberts wrote. Whether on drugs, immigration, the environment, or anything else, “an enterprising prosecutor could then charge the former president with breaking the law in this way.”

Of course. But this astonishing argument amounts to normalizing what Trump has been saying for two years: I could get revenge by accusing the former administration.

To this, Justice Department lawyers have argued that before indicting a former president, an independent prosecutor has been appointed, the case has passed the test of a grand jury, and a court of justice can try the case.

Questions of principle are not decided by presuming the good faith of the government, the chief justice replied.

The chief justice insists that the president is not above the law. But short of robbing a bank, almost every conceivable criminal act by a president is related to his office. Including bribery: that involves his powers.

In the specific case of the attempt to overturn Biden’s election, the majority concludes that all of Trump’s conversations with the Justice Department are protected by absolute immunity. Because the power to appoint the Attorney General is the sole responsibility of the President. Conversing with the Department’s lawyers is part of his essential duties.

Yes, but what if these conversations were intended to trigger bad faith investigations to delay the confirmation of the election? What if the goal was to move a prosecutor to facilitate the commission of fraud?

It’s covered. Absolutely.

What about Trump’s conversations with Vice President Mike Pence, so that he would refuse certification? Immunity is presumed, the majority says, after a lengthy analysis of the close ties between the president and his vice president. It will therefore be up to the government to prove that an accusation in such circumstances would not threaten the presidential office. There are clearly “private” acts, the majority acknowledges, such as calls to individuals, “tweets,” etc. But again, they are intertwined with presidential action.

The majority uses a very moderate tone, and seems to reject the extreme positions of both Trump and the Attorney General. It accuses the dissenting judges of engaging in a “fear campaign” based on “extreme examples.”

But in reality, Trump’s victory is almost complete. Already, on Monday night, his lawyers announced that they would use the ruling to overturn his conviction in New York state, because some of the evidence was collected after he took office in 2017.

Conservative justices, so fond of the “original” intentions of the framers of the Constitution, ignore the fact that several state constitutions contained a gubernatorial immunity clause at the time of the country’s founding. The question of presidential immunity was discussed when the U.S. Constitution was written, and the idea was dismissed, Justice Sotomayor notes.

Alexander Hamilton even wrote that the real distinction between Britain and the new republic is that a president can be prosecuted for his crimes.

Gerald Ford pardoned Richard Nixon in 1974 because he feared he would be charged with obstructing an FBI investigation. He knew the former president had no immunity, and Nixon later accepted the pardon for the same reason, Sotomayor wrote.

This immunity becomes “a loaded weapon” in the hands of the president, who operates largely in an area outside the law, as she writes.

And as of this writing, the greatest number of voters want to put it in Donald Trump’s hands.