US Supreme Court’s Immunity Ruling Gives President’s George III-like Power
Photograph by Nathaniel St. Clair
If you hadn’t read the news in four years — or just arrived from another galaxy — the Supreme Court’s de facto grant of immunity to Donald Trump for his alleged federal crimes might sound almost reasonable.
There are “unique risks,” six right-wing justices warned, that if a president were required to answer criminal charges, his energies would be “diverted.” He might become “unduly cautious,” less willing to take “bold and unhesitating action.”
But if you’ve followed even a shred of news, you know this reasoning is utterly unhinged — and dangerous. The risk the right-wing majority refuses to consider is that a president might “boldly” and “unhesitatingly” try to overturn our constitutional democracy.
The real danger isn’t that an “unduly cautious” president will worry too much about being charged with crimes. The danger is that a faithless president can use the enormous powers of the presidency to overturn an election he lost. That’s what nearly happened after the 2020 election — a matter the majority says not one word about.
Nonetheless, the six hold that when a president is performing “core constitutional powers” — engaging in actions which the Constitution says he can do — he is totally immune to criminal prosecution.
In the oral argument of the case, Trump’s attorneys were asked about the seemingly absurd notion that a president would be immune to prosecution if he officially ordered the assassination of a political rival. They didn’t dispute it. And now the Supreme Court just adopted that absurd theory.
Similarly, a president would now enjoy “absolute immunity” from prosecution if he told the attorney general, “Forge evidence that my opponent sold secrets to China and arrest him for treason.” He could freely sell national secrets to Russia. Auction pardons. Or assassinate unfriendly judges.
Where does this outrageous theory come from? Not the Constitution.
The six right-wingers’ ruling has no basis in law or logic — and turns the lessons of our history upside down. The Constitution includes no language granting the president immunity from criminal charges, and the Founding Fathers were dead set against an all-powerful executive.
The Founders considered it a feature, not a fault, that under the proposed Constitution the president would be restrained. They maintained the president wouldn’t pose a threat to liberty because he wouldn’t be above the law, unlike the King of England.
As Alexander Hamilton wrote, former presidents who’d committed crimes during their presidency would thereafter be “liable to prosecution and punishment in the ordinary course of law.”
The conservative majority of the Supreme Court acknowledged, in theory, that a president is not 100 percent above the law. Even Trump’s own lawyers conceded the point.
Nonetheless, the six ignored Trump’s concessions and will now require his federal criminal trial to go through a time-consuming process to assess the immunity claims. That will delay the trial until after the election — which could give Trump the power to fire all of the prosecutors and dismiss the charges against himself if he wins.
Why would the conservative justices do all this to protect Trump? So they can continue to impose their extremist views on America.
The extremists currently enjoy a six-three Supreme Court majority. But Justice Thomas is 76 and Justice Alito is 74. Their seats could become vacant in the next four years and potentially flip. By protecting Donald Trump from prosecution, they’re trying to secure the succession at the Supreme Court — to make sure the right wing maintains its power.
The upcoming election could determine whether the far-right majority is flipped on its head — or paves the way for a deeper assault from extreme judges and politicians.
The Supreme Court Has Made It Official: US
Presidents Are Now Monarchs
The Supreme Court’s Trump v. United States ruling gives Donald Trump "legal" cover for past and future lawbreaking.
Today, Americans celebrate Independence Day, commemorating the Declaration of
Independence when the colonists threw off the yoke of King George III. When they crafted it,
the framers of the Constitution established three co-equal branches of government to check
and balance each other.
But the Supreme Court’s shocking decision in Trump v. United States takes us back to the bad
old days of the monarchy. The reactionary supermajority held that presidents have absolute
immunity from criminal prosecution for core official acts, and presumptive immunity for all
other official acts.
Donald Trump is charged in federal court with conspiracy to defraud the United States,
conspiracy to obstruct an official proceeding, obstruction of an official proceeding, and
conspiracy against the right to vote for his acts to overturn the results of the 2020 presidential
election.
Chief Justice John Roberts, writing for the six right-wingers, assured us that “the president is
not above the law.” But he then proceeded to carve out a zone of immunity even broader than
the one Trump’s legal team had sought.
Henceforth, a president will have absolute immunity from prosecution for official acts done in
the course of carrying out his constitutional powers or implementing a federal statute. “We
thus conclude,” Roberts wrote, “that the President is absolutely immune from criminal
prosecution for conduct within his exclusive sphere of constitutional authority.” That includes
commanding the armed forces, granting pardons, appointing ambassadors and members of the
Supreme Court, overseeing international diplomacy and intelligence gathering, terrorism, trade
and immigration.
A president has presumptive immunity for acts committed in “the outer perimeter of his official
responsibility.” The burden is on the prosecutor to rebut that presumption of immunity by
showing that prosecuting such an act would pose no “dangers of intrusion on the authority and
functions of the Executive Branch,” a tall order.
“It is hard to imagine a criminal prosecution for a President’s official acts that would pose no
dangers of intrusion on Presidential authority in the majority’s eyes,” Sonia Sotomayor noted in
her impassioned dissent, joined by Elena Kagan and Ketanji Brown Jackson.
Roberts wrote that conversations between Trump and high-ranking Department of Justice
(DOJ) officials (in which he pressured them to declare the election was corrupt) are absolutely
immune. That means Trump could not be prosecuted even if he ordered DOJ officials to indict
all congressional Democrats.
Trump’s conversations in which he bullied then-Vice President Mike Pence to stop the count or
suspend the certification of the electors and urged state officials to send slates of false electors,
and Trump’s tweets and his January 6 speech on the Ellipse “present more difficult questions,”
Roberts wrote.
The court sent the case back down to U.S. District Judge Tanya Chutkan to “carefully analyze”
whether allegations in the indictment against Trump for trying to overturn the election results
involved official conduct for which he would be immune from prosecution. That inquiry “may
depend on the content and context of each,” Roberts added.
There is no immunity for unofficial acts. “There may, however, be contexts in which the
President, notwithstanding the prominence of his position, speaks in an unofficial capacity —
perhaps as a candidate for office or party leader,” Roberts noted. It will depend on content,
form and context.
“But there is not always a clear line between the President’s personal and official affairs,”
Roberts wrote. “Distinguishing the President’s official actions from his unofficial ones can be
difficult.” But Roberts made that even more difficult by saying that “in dividing official from
unofficial conduct, courts may not inquire into the President’s motives.”
Moreover, in a prosecution for unofficial acts, evidence of official acts will be excluded.
Although she joined the majority opinion, Amy Coney Barrett disagreed with that holding. “Yet
excluding from trial any mention of the official act connected to the bribe would hamstring the
prosecution” in a bribery case, she wrote in her separate concurrence. “To make sense of
charges alleging a quid pro quo, the jury must be allowed to hear about both the quid and
the quo, even if the quo, standing alone, could not be a basis for the President’s criminal
liability.”
“The President Is Now a King Above the Law”
“In every use of official power, the President is now a king above the law,” Sotomayor wrote.
“The court effectively creates a law-free zone around the president, upsetting the status quo
that has existed since the founding.” The immunity the court created now “lies about like a
loaded weapon” for any president to use for their own political gain or financial interests, with
the knowledge that they are inoculated from criminal liability, Sotomayor added.
Now, when a president “uses his official powers in any way,” he will be immune from criminal
prosecution, Sotomayor noted. “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.”
In her separate dissent, Jackson likewise sounded the alarm that U.S. presidents would be kings
under the court’s ruling. “The majority of my colleagues seems to have put their trust in our
Court’s ability to prevent Presidents from becoming Kings through case-by-case application of
the indeterminate standards of their new Presidential accountability paradigm,” she wrote. “I
fear that they are wrong.” The court has declared for the first time that “the most powerful
official in the United States can . . . become a law unto himself.”
“From this day forward,” Jackson wrote, “Presidents of tomorrow will be free to exercise the
Commander-in-Chief powers, the foreign affairs powers, and all the vast law enforcement
powers enshrined in Article II however they please — including in ways that Congress has
deemed criminal and that have potentially grave consequences for the rights and liberties of
Americans.”
Former President Richard Nixon famously claimed that, “When the president does it, that
means that it is not illegal.” But after the Supreme Court ruled that he could not assert
executive privilege to undermine a criminal investigation, Nixon resigned rather than face
criminal charges for his role in the Watergate break-in. John Dean, who was Nixon’s White
House counsel, told HuffPost, “Presumptively, [the president] has the power to assassinate a
rival” after the court’s ruling in Trump v. U.S.
Last December, Trump vowed that if elected, he would be a “dictator on day one” and
promised “retribution” against his political rivals. Now he will presumably be immunized for
those despotic pursuits.
Trump “plans to immediately test the boundaries of presidential and governing power, knowing
the restraints of Congress and the courts are dramatically looser than during his first term,” his
advisers told Axios.
Trump Gets “Legal” Cover for Past and Future Lawbreaking
In essence, the court has provided Donald Trump with “legal” cover for his lawbreaking in his
effort to hold onto power after the 2020 presidential election, and license to blatantly break
the law if he receives a second term. Although the DOJ will continue to pursue its prosecutions
of Trump, the court’s delay in issuing this ruling has made it virtually impossible for Trump to go
to trial on his three remaining criminal indictments before the November election. If and when
he is elected, Trump could order his Justice Department to dismiss the two federal cases
pending against him.
After the court handed him nearly unfettered power, Trump posted on Truth Social: “BIG WIN
FOR OUR CONSTITUTION AND DEMOCRACY. PROUD TO BE AN AMERICAN!”
Joe Biden slammed the ruling, saying, “No one is above the law, not even the president of the
United States.” Now, however, “there are virtually no limits on what a president can do,” he
added.
Biden said, “I know I will respect the limits of presidential power as I have for the three-and-a-
half years, but any president, including Donald Trump, will now be free to ignore the law.”
Biden apparently forgot that when he was sued in U.S. district court for complicity in genocide
and failure to prevent genocide in Gaza, his legal team argued that there were no constraints
on the president’s foreign policy decisions. In essence, he claimed that he was free to violate
the laws prohibiting genocide because he is the president.
Although Trump’s federal conspiracy trial will be delayed so that Judge Chutkan can decide
which of his actions are immune from criminal consequences, it will provide a valuable
opportunity for a full and public hearing about the former president’s actions to overturn the
election results.
Chutkan will scrutinize Trump’s use of lies regarding election fraud to convince state officials to
alter the results; his plot to create false slates of electors; his campaign to pressure Pence to
violate his constitutional duty to refuse to certify the election results; and his efforts to exploit
the chaos and violence he unleashed at the Capitol on January 6.
Stay tuned.
Marjorie Cohn
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, dean of the People’s Academy of International Law, and past president of the National Lawyers Guild. She sits on the national advisory boards of Assange Defense and Veterans For Peace. A member of the bureau of the International Association of Democratic Lawyers, she is the U.S. representative to the continental advisory council of the Association of American Jurists. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues.
The US Supreme Court Outs the Imperial Presidency
The US Supreme Court has much to answer for. In the genius of republican government, it operates as overseer and balancer to the executive and legislature. Of late, the judges have seemingly confused that role.
In contrast to its other Anglophone counterparts, the highest tribunal in the US professes an open brand of politics, with its occupants blatantly expressing views that openly conform to one side of the political aisle or the other. Not that the idea of a conservative or liberal judge necessarily translates into opposite rulings. Agreement and common ground can be reached, however difficult the exercise might be. Justice should, at the very least, be seen to be done.
The current crop, however, shows little in the way of identifying, let alone reaching common ground. Firm lines, even yawning chasms, have grown. The latest decision on presidential immunity from criminal prosecution is one such case. On July 1, the majority of the court held by six to three that a US president, including former occupants of the office, “may not be prosecuted for exercising his core constitutional powers, and he is entitled, to a minimum, to a presumptive immunity from prosecution for all his official acts.”
Throughout the sequence of decisions, which began before the trial judge, Tanya Chutkan, Donald Trump has argued that he should be immune from prosecution, notably regarding federal charges of subverting the results of the 2020 election. Those actions, he claims, formed part of his official duties. Furthermore, as he suffered no conviction or either impeachment, he could not be tried in a criminal court.
The decision offers a grocery basket of elastic terms that will delight future litigants. The total immunity, the decision states, covers “core constitutional powers”. The president, former or sitting, further had “presumptive immunity from criminal prosecution” regarding all discharged official acts as a function of the separation of powers. Falling for giddying circularity, the majority opinion goes on to remark that the immunity “extends to the outer perimeter of the President’s official responsibilities, covering actions so long as they are not manifestly or palpably beyond his authority.” It does not, however, extend to “unofficial acts” or “unofficial conduct”.
The majority was also of the view that no court should inquire into the President’s motives when distinguishing official from official conduct. “Such an enquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II interests that immunity seeks to protect.” This shielding does have a remarkable effect, granting the president uncomfortably wide powers regarding decisions that can involve breaching the very laws the office is intended to protect.
The decision magnifies the scope of presidential power. One might say it invests that power with imperial, distinctly anti-republican attributes. For decades, it had been assumed that presidents would be spared civil suits to, in the words of the majority, “undertake his constitutionally designated functions effectively, free from undue pressures or distortions.” To take the immunity to cover breaches of laws the executive is bound to be faithful in executing is a quite different creature. To suggest that would be to echo, as indeed US District Court Judge Chutkan opined in December 2023, of a “divine right of kings to evade criminal responsibility.”
The three liberal justices violently disagreed with the majority in a judgment authored by Justice Sonia Sotomayor. “Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.” The dissent excoriates, not merely the reasoning of the court but the man whose actions it will benefit. “Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent.”
According to the lashing words of Sotomayor, the majority had invented “an atextual, ahistorical, and unjustifiable immunity that puts the President above the law.” From the outset, it was unnecessary to make any finding on absolute immunity on the exercise of “core constitutional powers” given the facts outlined in the indictment. This was further “eclipsed” by the decision “to create expansive immunity for all ‘official act[s]’.” Whatever the terminology used – presumptive or absolute – “under the majority’s rule, a President’s use of any official power for any purpose, even the most corrupt, is immune from prosecution.”
With withering ire, Sotomayor also thought it “nonsensical” that “evidence concerning acts for which the President is immune can play no role in any criminal prosecution against him”. It would make it impossible for the government to use the President’s official acts to prove knowledge or show intent in prosecuting private offences.
Despite the broad sweep of the judgment regarding immunity, there are pressing questions on whether Trump’s own conduct regarding claims of election subversion would fall within the ambit of the ruling. The multiple lawsuits filed challenging the 2020 election result were peppered with admissions on his part that he was doing so in the personal capacity of a candidate rather than that of an office holder performing official functions. Since then, he has had a change of heart, taking the rather primitive view articulated by that other advocate of an imperial executive, President Richard Nixon, who claimed that, “When the president does it, that means that it is not illegal.”
The Supreme Court has remanded the questions on whether absolute immunity applies to such acts as pressuring state election officials and conduct around the events of January 6 to the lower courts. But the consequences of the decision have been immediate in the context of the hush money case, for which Trump was found guilty of 34 felony counts of falsifying business records. His lawyers have already asked that the July 11 sentencing be delayed while also applying to set aside the conviction. Thus, do shadowy motives, personal conduct and the official blur.
Much ink, resources and litigation, is bound to be expended over the next few years over what falls within official, as opposed to unofficial acts, that attach to the office of the US president. Along the way, a few laws may well be broken. With a delicious sense of irony, the Supreme Court ruling will also shield President Joe Biden from vengeful prosecutions planned by Trump and his courtiers. The law can, every so often, be fantastically double-edged.
Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com. Read other articles by Binoy.
The Supreme Court Makes the President a Dictator for Life
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.
— Justice Sonia Sotomayor dissenting in Trump v. United States
The U.S. Supreme Court has made it official: the president of the United States can now literally get away with murder.
In a devastating 6-3 ruling in Trump v. United States that is equal parts politically short-sighted, self-servingly partisan, and utterly devoid of any pretense that the president is anything other than a dictator, the Supreme Court has validated what Richard Nixon once claimed: “When the president does it, that means that it is not illegal.”
As Justice Sotomayor concluded in her powerful dissent:
The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. 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. Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today. Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done.
The damage has indeed been done. Indubitably. Irrevocably. Unarguably.
Every American should be outraged, offended and afraid of what this ruling means for the future of our nation.
There can be no more pretending that we live in a constitutional republic. It’s all out in the open now. This is a dictatorship: Hitler has finally stepped out of the shadows.
The rule of law may have been on life support for a long time, but this ruling pulls the plug.
The facts of the case itself, which asks whether former president Donald Trump is immune from prosecution on charges that he attempted to overturn the 2020 presidential election, are less important than the ramifications of this ruling, which go so far as to dramatically expand the power of the presidency, rendering whoever occupies the Oval Office lawless and unaccountable.
This is exactly how tyranny rises and freedom falls.
In a textbook example of doublespeak, Chief Justice John Roberts, writing for the Supreme Court’s six-person conservative majority, essentially declared that presidents are not above the law and then turned right around and ensured that presidents can do whatever they want in their official capacity without being held accountable or criminally liable.
As Roberts noted, “We conclude that under our constitutional structure of separated powers, the nature of presidential power requires that a former president have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute.”
Here’s the thing, however: this isn’t anything new. Not really.
Although the Constitution invests the President with very specific, limited powers, in recent years, American presidents have claimed the power to completely and almost unilaterally alter the landscape of this country for good or for ill. The powers amassed by each successive president through the negligence of Congress and the courts—powers which add up to a toolbox of terror for an imperial ruler—empower whoever occupies the Oval Office to act as a dictator, above the law and beyond any real accountability.
As law professor William P. Marshall explains, “every extraordinary use of power by one President expands the availability of executive branch power for use by future Presidents.”
Moreover, it doesn’t even matter whether other presidents have chosen not to take advantage of any particular power, because “it is a President’s action in using power, rather than forsaking its use, that has the precedential significance.”
In other words, each successive president continues to add to his office’s list of extraordinary orders and directives, expanding the reach and power of the presidency and granting him- or herself near dictatorial powers.
All of the imperial powers amassed by past presidents—to kill American citizens without due process, to detain suspects indefinitely, to strip Americans of their citizenship rights, to carry out mass surveillance on Americans without probable cause, to suspend laws during wartime, to disregard laws with which he might disagree, to conduct secret wars and convene secret courts, to sanction torture, to sidestep the legislatures and courts with executive orders and signing statements, to direct the military to operate beyond the reach of the law, to operate a shadow government, and to act as a dictator and a tyrant, above the law and beyond any real accountability—were passed from Clinton to Bush to Obama to Trump to Biden and will be passed along to the next president.
These presidential powers—acquired through the use of executive orders, decrees, memorandums, proclamations, national security directives and legislative signing statements and which can be activated by any sitting president—enable past, president and future presidents to operate above the law and beyond the reach of the Constitution.
These are the powers that continue to be passed along to each successive heir to the Oval Office, the Constitution be damned.
So you see, the Supreme Court didn’t make the president a dictator. It merely confirmed what we’ve been warning about all along: the president is already an imperial, unaccountable and unconstitutional dictator with permanent powers.
Absolute power absolutely corrupted the presidency.
Which brings me back to the Supreme Court’s ruling on July 1, 2024, which was handed down mere days before the nation celebrates the anniversary of its declaration of independence from the heavy-handed tyranny of King George.
Read the Declaration of Independence again, and ask yourself if the list of complaints don’t bear a startling resemblance to the abuses “we the people” are suffering at the hands of the American police state.
In the 248 years since early Americans first declared and eventually won their independence from Great Britain, “we the people” have managed to work ourselves right back under the tyrant’s thumb.
Only this time, as I make clear in my book Battlefield America: The War on the American People and in its fictional counterpart The Erik Blair Diaries, the tyrant is one of our own making.
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