In its extraordinary, politically partisan and far-reaching ruling that a former president is immune from prosecution for “official” acts, the US supreme court was not interpreting the balancing provisions of the US constitution. It was instead enshrining in law a dangerous erosion of democracy and the rule of law, the postwar emergence of what historian Arthur Schlesinger called the “imperial presidency”. It was a practice that was epitomised in Richard Nixon’s pre-Trump, but very Trumpian, declaration that “when the president does it, that means that it is not illegal.”
Despite post-Watergate attempts to constrain presidential power, a succession of mainly Republican presidents have struggled to shake off what they saw as the dead hand of Congress and the law, most notably on issues of national security and the conduct of foreign military operations. Donald Trump took presidential autonomy to a whole new level and is promising, should he be re-elected, to go even further.
Over the weekend he escalated his pledge to prosecute political opponents, circulating posts on his social media channel calling for the jailing of President Joe Biden, Vice-President Kamala Harris, Republican Senators Mitch McConnell and Liz Cheney, and his former Vice President Mike Pence, among others.
And, of course, he will order the Department of Justice to end his own prosecutions, which, courtesy of the supreme court deferring to lower courts the crucial definition of “official acts”, are most unlikely now to he heard before the election. Trump could barely have asked for a more comprehensive legal victory from the court, whose membership he so assiduously stacked.
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The decision will have sweeping effects, notably in the dramatic expansion of executive power. In her blistering dissent Sonia Sotomayor, joined by the other two liberals, writes that “the relationship between the president and the people he serves has shift[ing}ed irrevocably.” Her fellow judges’ decision, she said, “makes a mockery of the principle, foundational to our constitution and system of government, that no man is above the law… In every use of official power, the president is now a king above the law. With fear for our democracy, I dissent.”
The old maxim that the “king can do no wrong” is enshrined as constitutional principle. Specifically, it gives absolute presidential immunity from actions taken to exercise “core constitutional powers” and “at least presumptive immunity from prosecution for all his official acts”.
Chief Justice John Roberts dismisses as hyperbole Sotomayor’s list of potential presidential misdeeds that a Trump-like president may freely practice with absolute impunity. His faith in US democracy’s ability to constrain a vengeful, megalomaniacal Trump is surely misplaced.