The Supreme Court Puts Trump Above the Law

And gives him permission for a despotic second term.

By Adam Serwer

Near the top of their sweeping, lawless opinion in Trump v. United States, Donald Trump’s defenders on the Supreme Court repeat one of the most basic principles of American constitutional government: “The president is not above the law.” They then proceed to obliterate it.

Although the pro-Trump justices attempt to nest the breadth of their opinion in legalese, their finding that the president cannot be prosecuted for “official acts,” and that much of Trump’s efforts to seize power fall under that rubric, means that the justices have essentially legalized a losing president refusing to step down, as Trump tried to do after the 2020 election.

The Court’s opinion presents an absurd paradox that defeats the purpose of a constitutional democracy governed by the rule of law. It has little basis in the Constitution or in the words of the Founders. It is the outcome that most benefits the Court’s preferred presidential candidate, while allowing the justices to live with themselves for defacing beyond recognition the Constitution and the concept of democratic self-determination.

In her dissent, Justice Sonia Sotomayor puts it plainly. Regarding the question of “whether a former President enjoys immunity from federal criminal prosecution,” Sotomayor writes, “The majority thinks he should, and so it invents an atextual, ahistorical, and unjustifiable immunity that puts the President above the law.” That is the long and the short of it.

Referring to Trump’s scheme to manufacture voter-fraud prosecutions as a pretext for overturning his loss in the 2020 election, the Court writes that “because the President cannot be prosecuted for conduct within his exclusive constitutional authority, Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.” This refers to discussions in which Trump, who was warned by his own advisers that his claims of voter fraud were bogus, told the Justice Department, “Just say that the election was corrupt + leave the rest to me and the R. Congressmen,” according to contemporary notes by a Justice Department official.

Throughout the opinion, Chief Justice John Roberts often sounds more like Trump’s lawyer than the impartial judge he presents himself as. Roberts writes that “with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute.” If that applies, as the Court holds, to a sitting president manufacturing a scheme to avoid relinquishing power after losing an election, then there is no legal constraint on a president simply refusing to leave office and using his authority to find a pretext for doing so. We can debate the nuances of history, the Framers’ intentions, or the text of the Constitution. What the Founders of the United States did not intend to do, when they designed a constitutional system of checks and balances, was establish a government that would allow someone to declare themselves president for life if they felt like it.

The Court writes that presidents cannot be prosecuted for “use” of their official powers, but what it actually means is they cannot be prosecuted for the flagrant abuse of them. That renders the plain disclaimer on which the opinion rests—that the president is not above the law—a lie. More significant, this opinion depends on an implicit belief that the only person who would act so brazenly is Trump, and that because the majority of the justices on the Court support Trump and want him to be president, he must be shielded from prosecution. In this backhanded manner, Trump’s justices acknowledge that he poses a unique threat to constitutional government, one they just happen to support because he is their guy. These are not justices; these are Trump cronies. This is not legal reasoning; this is vandalism.

Like many opinions from this Court, this one covers its radicalism with a pretense of moderation—presidents can be prosecuted for “unofficial” acts—that would nonetheless allow a president to escape prosecution for the most heinous abuses of power imaginable. The Court rejects Trump’s claim that a former president must be impeached and convicted before being prosecuted for anything, while laying down a standard that makes it impossible for a president who attempts to seize power to be prosecuted for doing so.

“Distinguishing the President’s official actions from his unofficial ones can be difficult,” Roberts writes. Then he makes it more difficult, writing that “in dividing official from unofficial conduct, courts may not inquire into the President’s motives.”

That’s the idea: By balancing 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. If Trump wins, he can then—wielding the sword of “absolute immunity” that the Court has provided—dismiss the criminal investigations against him. “The majority’s dividing line between ‘official’ and ‘unofficial’ conduct narrows the conduct considered ‘unofficial’ almost to a nullity,” Sotomayor writes.

A lifetime appointment means that Supreme Court justices can do whatever they wish when they are in the majority. When the justices wanted to force Colorado to return Trump to its presidential ballot after the state concluded that his attempted seizure of power on January 6 barred him from holding office under the Fourteenth Amendment, they moved as rapidly as possible. When they wanted to assist Trump’s strategy of delaying any possible federal trial, they took their time.

Such efforts are inconsistent with the idea that the justices are impartial. By now it should be obvious that this is a fiction. The current composition of the Court is the result of decades of work by right-wing activists seeking a permanent conservative political ascendancy, and the behavior of the majority consistently reflects that objective. Like other right-wing institutions, it has become thoroughly corrupted by its obeisance to the Republican Party leader, the principle to which all others are now subordinate. This is not the Republican Party Court; it is the Trump Court.

Trump’s claim was absurd on its face: namely, that former presidents are immune to prosecution for any crime committed under color of law unless impeached and convicted. The kernel of logic in that argument, that the powers of the president confer some level of immunity for certain acts, has been expanded beyond recognition to immunize Trump from prosecution.

In an obvious hypothetical frequently raised by critics, this would mean that a president could assassinate a rival in the name of national security, then avoid impeachment by intimidating members of Congress with the threat of murdering them as well, and thus be immune from prosecution forever. This ruling upholds that doomsday scenario, and if by some miracle a president who murdered his political enemies were removed, prosecutors would not only be barred from trying him but would also not be allowed to use his conversations with executive-branch officials as evidence against him.


“When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution,” Sotomayor writes. “Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”

The Trump Court’s decision is not only cover for his actions following the 2020 election. The ruling must be understood as a permission slip for the despotic power that Trump has vowed to assert if he is reelected. It is not just a grant of immunity for past crimes, but an enthusiastic endorsement of the ones he will commit if given the chance. Trump has said he would be a “dictator on day one” and has vowed “retribution” against his political opponents. Right-wing think tanks are plotting to ensure that the federal government is staffed by loyal cronies who can turn its immense power to protecting and enriching Trump and imposing an extreme agenda without legal constraints.

With this ruling, the Trump Court is saying that Trump is entitled to immunity from prosecution for crimes he has already committed, and for the ones he intends to commit in the future. The entire purpose of the Constitution was to create a government that was not bound to the whims of a king. The Court’s self-styled “originalists,” in a perverse contortion of history and the Constitution they pretend to cherish, have chosen to put a crown within Trump’s reach, in the hopes that he will grasp it in November.

Adam Serwer is a staff writer at The Atlantic.

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