Everyone who takes Civics 101 learns this basic concept: In America, no one is above the law, not even the person who holds the nation’s highest office.
Without that principle solidly in place, is America still America?
Or is it a nation where “when the President does it, that means that it is not illegal,” as disgraced former President Richard M. Nixon infamously said to British journalist David Frost?
On Monday, the Supreme Court’s conservative supermajority didn’t go quite as far as Nixon did when he spoke to Frost in 1977. But the court came alarmingly close, in a ruling that deals a major blow to the bedrock American notion that a crime is a crime, no matter who commits it.
In Trump v. United States, the court’s six conservatives — three appointed by former president Donald Trump — ruled that ex-presidents have broad immunity from criminal prosecution. As Chief Justice John G. Roberts wrote for the majority, “the nature of presidential power entitles a former president to absolute immunity for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts.” Only “unofficial acts” are not immune from prosecution.
The ruling adds another hurdle for Special Counsel Jack Smith as he pursues the case against Trump for trying to overturn the 2020 election. The case was sent back to the lower courts to determine whether the conduct at the center of the charges against Trump was official or unofficial. Smith, we think, should plow ahead full speed.
The case, originally scheduled to go to trial in March, now clearly will not wrap up in time for voters to know Trump’s guilt or innocence before casting their ballots.
But Trump’s strategy of delay, delay and delay some more should not be allowed to succeed, at least not without a fight. Americans deserve to know whether the candidate who wants to return to the presidency is guilty of trying to overturn the election that threw him out the first time.
By siding to a large degree with Trump — despite Roberts’ insistence that “the President is not above the law” — the ruling will further cement the court’s worsening reputation for partisanship and bias among much of the general public. The days when large percentages of Americans had a “great deal” or a “fair amount” of trust in the nation’s highest court are long gone — and a lack of trust in an independent judiciary is a bad sign for democracy.
Dictator nations have judges and courts, but without independence.
‘How do you keep a democracy?’
Justice Sonia Sotomayor, in a dissent joined by fellow liberal Justices Elena Kagan and Ketanji Brown Jackson, did not mince words about the majority’s view.
“In every use of official power, the president is now a king above the law,” she wrote. “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.”
That’s not hyperbole, as one constitutional law expert told us.
The ruling is “egregiously wrong,” Aziz Huq, Frank and Bernice J. Greenberg Professor of Law at the University of Chicago, told us. “The ruling will have very serious short and long-term negative consequences. There have been other Supreme Court decisions that have damaged democracy. This is the first one that leaves me feeling really pessimistic about its prospects. Once you assign the chief executive this kind of power, how do you keep a democracy?”
“It’s a lawless decision, that sets up a lawless presidency,” Huq added.
Here’s an example: Suppose an employee of the National Security Agency is asked by the president to spy on his political enemies, and says no. “After today, that answer is no longer available,” Huq said.
In siding largely with Trump, the court paid no heed to the meticulous arguments against presidential immunity made by a group of top historians in a friend of the court brief filed by the Brennan Center for Justice. In it, the scholars outline, point by point, why the Founding Fathers never intended to grant sweeping immunity to the president.
“While the Founders had a range of ideas about the scope of executive power, none of those ideas included conferring immunity on the President in the circumstances at issue here. Petitioner’s argument to the contrary is not historically credible,” the brief reads. “It violates common understandings of executive power in the new republic and contradicts basic values that have defined American democracy.”
“There are reasons to be nervous about prosecuting former presidents. So some standards make sense,” Michael Waldman, president and CEO of the Brennan Center, wrote on X. “Here, though, the Court has issued an instruction manual for lawbreaking presidents. Make sure you conspire only with other government employees. You’ll never be held to account.”
The Constitution states that the president has a duty to “take Care that the Laws be faithfully executed.” On Monday, the Supreme Court rewrote that clause to read, “take Care that the Laws be faithfully executed … by everyone else.”
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