The long-awaited Presidential Immunity ruling has finally come down from the Supreme Court, and while the right-wing majority did not hand the executive quite as much power as they could have, they still over-stepped their bounds and delivered a major blow to the balance of powers in our government. The court has said that the president has immunity from prosecution while carrying out the official duties of that office. And while the ruling will be sent back to a lower court to determine what constitutes “official duties,” this puts the president notably above the law and essentially makes the executive of this country a king. Those are not my words, by the way, those are the words of Justice Sonia Sotomayor, who issued a blistering dissent (along with the two other non-right-wing justices) to this decision:
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.
Sotomayor went on to give examples of how the president could abuse this immunity:
Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military dissenting 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.
Many will say that we should hold our judgment until the lower court makes a decision on “official duties,” but I say the damage is already done. Donald Trump has already made it quite clear that he plans retribution against his political rivals and enemies if he gets back in power, and this ruling will certainly embolden him. He claims the many cases currently against him were brought by Joe Biden as election interference (which is not true as I discuss at this link) and that he will take similar actions against opponents if he regains power.
So if Trump is re-elected (something that seems all the more possible after the debate fiasco), and he labels the Democrats as left-wing extremists threatening the country (something he has claimed on a regular basis), then he can say that it is within his “official duties” to address this alleged threat by any means necessary. He can then start rounding up the Democrats and putting them in “detainment” camps and/or possibly executing them as traitors. He has full immunity according to the Supreme Court, so what would stop him especially after signaling that he would do these very actions?
Some may point out the caveat brought up when the trial was in the lower court that if he is impeached and indicted by both houses of Congress, then the immunity goes away. But if he has rounded up the Democrats in the House and the Senate (a very real possibility based on his own words), that leaves only the Republicans, and they have shown many times that they will not stand up to his anti-democratic and authoritarian actions. Any Republican who opposed him at that point would almost certainly find themselves facing the same persecution as the Democrats, so they will remain loyal to Trump out of self-preservation.
And don’t think that this will just stop with politicians. Trump can issue a decree that anybody who opposes him counts as a threat to the country and have them rounded up as well (simply look at Putin’s Russia as an example of this). And while many—like myself—will scream that this is not legal and that it is unconstitutional, the point is essentially moot. The highly compromised right-wing majority on the Supreme Court has handed him immunity, and as Sotomayor says, has allowed him to “violate the law” and “use his official power for evil ends.”
There is still a chance that the lower court gives a clear definition of “official duties” and explicitly spells out that violations of the Constitution like this will not be tolerated. But I am dubious about how much that will hold a president in check if they choose to abuse their authority, and Trump has long shown that he does not respect boundaries or the rule of law. In addition, anything decided by the lower court will likely get escalated back up to the Supreme Court where the right-wing majority has shown far too much deference to Trump and his desire for unlimited power.
The interesting thing about this ruling is that it has handed the very same immunity to Joe Biden. And going with one of the very examples adjudicated in this case, the current president could order the assassination of Trump. He would actually have plenty of justification considering the existential threat that Trump and the MAGA movement pose to our democracy and the rule of law. Trump has made it quite clear that he will act as a dictator if he regains power, and Project 2025 presents a clear template for dismantling our Constitutional government and allowing the Republican Party to seize and hold power in the country.
Biden and the Democrats will not take this route, though, because they play nice politics (as reinforced by Biden’s speech after the ruling). They try to do the “right thing” and not stoop to the level of no-holds-barred bully-politics that has defined Trump’s time as a candidate and as executive of the country. And ultimately, it is certainly better to take the higher road. But when you are faced with dirty politics at every front and the stacked deck that is the Supreme Court, sometimes playing it nice is not the right answer.
Our best choice at this point is to ensure that Trump does not return to power. We have the chance to block his return to the White House with our votes in November at the polls. Joe Biden is certainly not the greatest option as president of the country, but despite his age, he has done some good things while in office and can continue to at least keep the ship upright. I will certainly take a “sympathetic, well-meaning, elderly man with a poor memory” over the dictator-in-waiting that is Donald Trump. Especially now that a conflicted majority on the Supreme Court has handed the office too much power. It’s up to us at this point, and we must vote for Joe Biden (no matter how much that may pain us) to keep from slipping into authoritarian rule under a leader who will almost certainly act as “a king above the law.”
For more on the SCOTUS immunity ruling, watch the latest episode of The Legal Breakdown with Bryan Tyler Cohen and Glenn Kirschner