The Supreme Court’s decision to grant presidents, in effect, blanket immunity from criminal prohibitions so long as they act in an “official” capacity will disable American democracy in both the short and the long term. While we will feel the bite of the decision’s immediate chill, the snowballing harms, barely visible now, will diminish the quality of self-rule for generations to come.
Start with the short term: The court’s decision is remarkable not just because of the breadth of the “official” presidential acts now blessed with immunity: all presidential speech to the public, all communications within the executive. In a coup de grâce that substantially helps Donald Trump (and perhaps Trump alone), the court also defined the outer boundaries of “official act” with lots of fuzziness. For example, inveighing Vice President Mike Pence to throw the election (in the counting of electoral votes), may or may not have been “official” business. Assembling a slate of false electors may or may not have been “official” business.
Set aside the court’s contorted logic, by which frank and explicit election subversion might be an “official act.” Notice instead that the court went out of its way to create legal uncertainty about the particular facts of Trump’s 2020 election subversion. This guarantees weeks or months of pretrial litigation: It is a highly effective means of ensuring Trump won’t go to trial for the Jan. 6 insurrection before the election, without having to take responsibility for doing so.
Recall, too, that this same court, just a few months ago, disabled states from passing judgment on whether Trump had aided an “insurrection,” thus disqualifying him from federal office. In that decision, the court said the right way to make that judgment was through a federal criminal proceeding — exactly the kind of proceeding it made nearly impossible this week.
The court’s interventions, in effect, have shut off the meaningful avenues for a public reckoning about Jan. 6. Its decisions on disqualification and immunity may rest on inconsistent premises, but they are consistent in favoring the interests of candidate Trump. And they are consistent in ensuring that there will be no public reckoning of what Trump did after the 2020 election. The most immediate and direct effect of its decision is to make a repetition of that violence far more likely.
According to the court, its refusal to precisely define the boundaries of “official act” immunity was justified because the issue hadn’t been aired. But of course, the lower courts had ruled on precisely that question — rightly finding no plausible account of Trump’s attempted election subversion to be “official.”
Worse, the court’s refusal to define the scope of criminal liability precisely flies in the face of a basic premise of criminal law: That the rules be clear and knowable. The fact that Trump is now making an “official act” argument in the New York hush money case is just more evidence of how weirdly distended and opaque the court’s rule was.
The first step to a ‘legal despotism’
Having aided the candidate who appointed three of them, the six Republican-appointed justices also dealt a grave blow to the basic idea of the rule of law in America for the long term: At its heart, the rule of law has long been understood to demand that a single law apply to the ruled and the ruler. The English scholar who coined the idea of the rule of law, A.V. Dicey, saw special protections for officials as the first step to a legal despotism.
The court has created a permanent black zone with the presidency where criminal laws don’t apply. It is certainly true that presidents, who appoint the attorney general, have never had much to fear when it came to criminal prosecution. But it is one thing to suspect that you won’t get prosecuted for using control of the Justice Department to jail political enemies (or, say, extort personal benefits from those fearful of your power). And it is another to see it written down in a U.S. Supreme Court case.
Notice the effect this has on the president’s subordinates: Recall how often officials in the first Trump administration pushed back on his demands by citing the law. Now, he can simply say that if he orders Liz Cheney arrested and detained for trial before a military tribunal, well, so what if it’s illegal? The law doesn’t apply to him.
The court majority’s response to this concern was risible: Don’t worry, it said, presidents can always be held liable for their “unofficial acts.” But this is just beside the point. The reason for concern about how government power can be misused is that officials have powers other people don’t. By placing those special powers outside the reach of the law, the court confirmed those fears.
What is especially disturbing is that the court has wrought this enduring damage to the Constitution for the narrowest and most petty of reasons: Its long campaign to protect its favored candidate for the 2024 race has claimed its most important, albeit most distant, victim.
Aziz Huq is the Frank and Bernice J. Greenberg Professor of Law at the University of Chicago Law School. His most recent book is “The Collapse of Constitutional Remedies.”
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