The US Supreme Court has issued a sweeping decision upholding the constitutionality of the modern reality of the imperial presidency, establishing near-total criminal immunity for Donald Trump’s official acts while in office — a result that would have astonished the Founding Fathers, who feared that too much presidential power would transform the republic into an empire.
The 6-3 conservative majority ruling left some room for prosecuting Trump for unofficial or personal conduct while in office. But the definition of such conduct was narrow, and lower courts could not look into Trump’s motives when determining whether a particular act was official. The ruling means that most, and likely all, of the federal criminal charges against Trump for conduct related to January 6 will be dismissed, with no realistic prospect of a trial taking place before the November presidential election.
In her dissent, Justice Sonia Sotomayor joined two other liberals in denouncement of the ruling in the strongest terms. “In every exercise of civil power, the President is now a king above the law,” she wrote.
This outcome would have been deeply unsettling to the nation’s Founding Fathers: Nothing in the Constitution’s text or original public meaning supports a court-created immunity.
On the contrary, as Sotomayor pointed out in her dissent, the Constitution clearly contemplates criminal prosecution of the president, noting that a president who has been impeached and removed from office by the Senate “shall be subject to indictment, trial, sentence and punishment according to law.”
And Alexander Hamilton, in Federalist No. 69, made a clear distinction between the president and the British monarch, saying that the president could be impeached, removed from office, and “subsequent prosecution subject to the forfeiture of his life and property.”
Thus, the constitutional basis of the Court’s decisions is based entirely on adjudicative principles. Adjudicative principles evolve over time to reflect changing historical and political circumstances. The greatest transformation in the American constitutional system since 1789 has been the rise of what historian Arthur Schlesinger Jr. called the “imperial presidency.” Modern presidents control a military more powerful than any other in the world, including nuclear weapons. Modern presidents are surrounded by a vast executive branch and a cadre of executive officials who work for them.
In light of these modern developments, the Supreme Court has, over the past 60 years or so, increasingly insulated the president from ordinary legal processes to a degree the Framers of the Constitution never dreamed of. The basic argument is that, as leader of the free world, the president needs to be able to carry out his duties without too much interference. Implicitly, there is an understanding that modern presidents are actually more like the elected rulers of a global empire than the weak leaders of small republics confined to the I-95 corridor of today, as their earlier counterparts were.
Sure, the Supreme Court forced Richard Nixon to turn over the Watergate tapes, forced Bill Clinton to testify in the Paula Jones case, and has rhetorically argued in the Trump case and in the past that presidents are not above the law, but it also granted the president immunity from civil lawsuits brought against him in 1982.
Trump’s immunity decision extends that protection to criminal immunity, all in keeping with the same core idea that an omnipotent president needs to be free and unhindered to run his empire.
The constitutional conclusion is that the Court’s six conservatives, all of whom are supposed to be constitutional letter fundamentalists, deviated from jurisprudential principles to grant Trump criminal immunity, while the three liberals offered a principled argument. Amy Coney Barrett stepped aside from the majority’s arguments, joining part of Sotomayor’s opinion on the narrow question of whether details of a president’s official acts can be introduced as evidence in court to prove he committed a criminal act privately. It was a reasoned opinion, but it fell short of what her mentor, Antonin Scalia, would have said about the majority’s invention of immunity that the Constitution’s framers never imagined.
The Supreme Court’s grant of immunity is being carried out in several stages, each of which will affect parts of Trump’s prosecution related to January 6.
First, the Court has ruled that a president’s acts of government are presumed to qualify for immunity unless the government can show that a specific criminal charge “poses no risk of impingement on the powers and functions of the executive branch.” As Justice Sotomayor noted, the immunity afforded for acts of government is virtually absolute, since most possible charges related to acts of government do pose some risk of impingement. For example, the Supreme Court has stated that the charges accusing a former president of conspiring with the acting attorney general to change the outcome of an election were based on acts of government and therefore must be dismissed.
As for the charge that President Trump tried to pressure Vice President Mike Pence to refuse to certify the election, the Court formally said immunity should be presumed and the government must prove to the lower courts that there was no risk of infringement on executive branch functions. The majority opinion discussed at length how important it is for the president and vice president to be able to debate policy, leaving little doubt about the answer that immunity should be granted.
As for the allegation that Trump conspired with his election advisers to pressure state officials to tamper with the election results, the majority said lower courts would have to conduct a thorough, fact-based analysis of each charge to determine whether they fell within the scope of Trump’s job duties.
Some of these parts of the indictment may survive scrutiny by lower courts. But even here, the majority seems to give some credence to Trump’s view that as president he may have formal authority to tell state officials to ensure that presidential elections are fair. This is a really terrible theory, but it’s possible that lower courts could adopt it, and even if they did, it seems unlikely that this Supreme Court would overturn the lower court’s decision.
What remains is the criminal charge that Trump incited a mob to disrupt the electoral vote count at the U.S. Capitol on January 6. The court again gave a lengthy discussion of why it is so important that the president be able to speak to the nation, suggesting that “influential” speech would count as an official act.
The Supreme Court then left a little room for lower courts to hold that, for example, a president may be speaking informally if he is speaking as a candidate. The Supreme Court concluded that it all depends on the context, and instructed lower courts to consider the context. I have a hard time imagining that this part of the indictment would survive a lower court analysis, but my Bloomberg Opinion colleague Steven Carter sees it differently.
The Supreme Court’s decision does not affect Trump’s conviction in New York for conduct before he took office or a federal prosecution in Florida for keeping classified documents after he left office. It could affect the Georgia prosecution, because a Georgia court must now decide whether Trump’s actions to influence the vote count there were official or unofficial.
In short, the Supreme Court has gutted a historic effort to hold Donald Trump legally accountable for his efforts to overturn the results of the 2020 election. This is astonishing and tragic. The Court’s decision reflects the gradual expansion of the imperial presidency.
When a president tries to destroy our democracy by overturning the results of an election he lost, and the Supreme Court responds by protecting him from criminal prosecution, our Founding Fathers would be horrified. Caesars would nod in approval.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist and Harvard Law professor, most recently author of To Be a Jew Today: A New Guide to God, Israel, and the Jewish People.
©2024 Bloomberg LP Visit bloomberg.com/opinion Distributed by Tribune Content Agency, LLC.
