Last week the U.S. Supreme Court ruled in Trump v United States that presidents have broad immunity from criminal prosecution that includes any and all “official acts” and by extension, that Trump likely has at the very least presumptive immunity from prosecution for election interference.
The consequences of this decision are vast and unacceptable – it makes it so it is virtually impossible to hold a president accountable, irrespective of how evil and corrupt they are.
Whether you’re a Democrat or Republican or whether you think that Trump should or shouldn’t have been convicted for unlawfully influencing the election, it’s not unwarranted or hysterical to claim that this is a direct attack on our federal republic.
The survival of our democracy depends on a system of checks and balances where no one is above the law and no office is beyond accountability. Indeed, the position most deserving of a system of accountability is our highest and most globally consequential office – the commander in chief of the military.
It seems that our originalist, textualist Supreme Court majority suddenly forgot all about their obsession with refraining from judicial activism. As I wrote in an earlier column, there is no impartiality in the supreme court. They rule according to what aligns with their political ideologies and not on some principled stance on constitutional interpretation.
Just like other public offices, the presidency does require some level of immunity from civil liability, otherwise they would be flooded with thousands of lawsuits from disgruntled citizens. But this ruling goes beyond anything that would be recognizably constitutional or American.
The court stated in its decision that absolute immunity (where a president may never be indicted) extends to “core official actions” and presumptive immunity (where this immunity must be outweighed by the public’s interest to indict) extends to “non-core official actions.”
While the decision didn’t tell us exactly what qualifies as a core power or an official action, it’s clear that powers like commanding the military, firing officials that they appointed, veto power, and representing the US in foreign affairs are all core powers.
If anything is a core presidential power it’s leading the military. Biden could right now order Marines to storm the offices of all those big mean news outlets calling for his withdrawal from the election. Because command of the military is a core power, it would count as an official act with absolute immunity.
What about unofficial actions? Here the court ruled that presidents may be criminally prosecuted, but they made it absurdly difficult to do so by disallowing the use of official actions as evidence. In other words, prosecutors cannot use official acts as evidence to prosecute a president for some unofficial act.
In simpler terms, the president is now free to use their powers to assassinate political rivals, receive bribes from foreign nations in exchange for military assistance, and as noted by Justice Sonia Sotomayor, stage a military coup to hold onto power. The president is now free to use the executive branch for his own gain, even to the detriment of all others.
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Paradoxically, part of the justification for the decision was that for the executive branch to perform its function as a check on the other branches of government, the president must not have excessive fear of prosecution. Well, those checks and balances are exactly what this decision destroys – the president is now virtually unchecked.
What could be less controversial than the principle that the president should not be above the law? The truth of this principle was clear to all including district judge Tanya Chutkan when she rejected a motion to dismiss Trump’s case for election interference on the grounds of presidential immunity. She clearly got it right – this isn’t so difficult.
John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett all pulled from their corrupted wells of expertise to destroy this fundamental American principle and on the way they eroded what was left of the public’s trust and goodwill for the Supreme Court.
Rafael Perez is a doctoral candidate in philosophy at the University of Rochester. You can reach him at rafaelperezocregister@gmail.com.