“If a future president sitting in the Oval Office wants to commit crimes, including overturning an election or remaining in power against the will of the American people, I think this opinion provides a roadmap for how to do that,” said David Becker, executive director of the Center for Election Innovation and Research.
Becker, a former Justice Department voting rights lawyer, said he believes prosecutions of Trump’s past actions could go forward in some form, but he said it will be much harder to hold him or any other president accountable after Monday’s ruling.
Like the Supreme Court dissenters led by Justice Sonia Sotomayor, Justice Becker cited a hypothetical example of a president ordering the military to kill a political opponent.
“If the secretary of defense does this, whether or not he is successful, everyone who participated in the crime could be prosecuted, but only the person who ordered it,” Becker said.
Before Trump, no current or former president had been indicted for a crime, though several came close: Richard M. Nixon was forced to resign for his involvement in the Watergate scandal and later pardoned by his successor, President Gerald Ford.
John Dean, a former adviser to President Nixon, said Monday that history may have been very different if the Supreme Court’s decision had stood in the early 1970s.
“When I saw that, I realized that Richard Nixon would have been exonerated,” Dean told reporters, because the evidence against Nixon was based on official duties that the Supreme Court had deemed exempt from prosecution.
The Watergate scandal began with a break-in at the headquarters of the Democratic National Committee and expanded into a series of covert and illegal activities involving the Nixon administration and campaign, resulting in the convictions of dozens of Nixon aides and associates.
Dean, a star witness in the Watergate investigation, called Monday’s ruling “a radical decision by a radical court” and “radical judicial activism.”
The decision came as Trump’s lawyers argued that he has broad immunity and should be immune from prosecution by special counsel Jack Smith, who is prosecuting the former president on charges including conspiracy to defraud the United States.
The Supreme Court ruled that while the president has absolute immunity for acts performed as part of his primary duties and a presumption of immunity for other acts of official business, he has no immunity from prosecution for non-official conduct. The decision is a blow to prosecutors, who now must persuade the judge to allow the case to proceed.
Derek Mueller, a law professor at the University of Notre Dame, said the ruling makes it harder to prosecute the president but does not exonerate him.
“It certainly provides added protection for the president, but I think there are pitfalls if future administrations rely too heavily on it,” Mueller said.
Mueller said the line between official and unofficial conduct can be blurred, as it was in Trump’s case. The ruling leaves open the possibility that Smith’s election charges against Trump can continue and could give Biden some protections if he loses to Trump in this fall’s election, Mueller said.
“If that is the case, this bill would prevent President Trump from prosecuting former President Biden on many counts,” he said, “and therefore open the door to moderating rhetoric from presidents and candidates threatening to prosecute former presidents for official conduct.”
He said the hypothetical example of an assassination plot was absurd: First, he said, others would be reluctant to carry it out for fear of being prosecuted.
He said much more needs to be heard in lower courts in Trump’s lawsuit and the case could easily return to the Supreme Court, meaning it remains unclear exactly when the president will enjoy immunity.
“If I were a president in the future trying to avoid criminal charges, I don’t think I would cite this lightly,” Mueller said.
The opinion was written by Chief Justice John G. Roberts and was fully joined by the four other Republican nominees to the Supreme Court, with Justice Amy Coney Barrett joining most of the opinion but dissenting in parts.
The three Democratic candidates disagreed with Sotomayor, who argued that the majority had created a “lawless zone around the president.”
“Order Navy SEAL Unit 6 to assassinate a political opponent? With impunity,” she wrote. “Plan a military coup to stay in power? With impunity. Accept a bribe in exchange for amnesty? With impunity. With impunity, with impunity, with impunity.”
She said the majority’s ruling meant the president would no longer face the same consequences as everyone else: “In every exercise of public power, the president is now a king above the law,” she wrote.
She concluded her opinion by writing, “I oppose this because I fear for our democracy.”
In his majority opinion, Justice Roberts said the dissenters went too far in saying the president is above the law. He wrote that taking into account the president’s broad powers “does not put him above the law but preserves the basic structure of the Constitution on which those laws are based.”
Roberts wrote that opponents are “fear-mongering based on extreme assumptions.”
In capital letters on social media, Trump hailed the ruling as a “beautifully written and wise” decision and said it would mean the charges against him would disappear or be “forgotten.”
With four months to go until the election, Trump is trailing or ahead of Biden in most polls. Trump was convicted by a New York jury in May for conduct before he took office and is also indicted on three other counts.
Critics called the dissent an all-too-real preview of what could happen in America if future presidents feel they can act with impunity.
“If a dissenting justice is warning us that the majority may have legalized murder by one person in our country, that warning should be taken seriously,” said Norm Eisen, a senior fellow at the Brookings Institution who served as special counsel to the House Judiciary Committee during Trump’s first impeachment trial.
Eisen said the ruling “creates dangerous cracks in the fabric of our Constitution and the checks and balances that have helped us survive as a nation for two and a half centuries.”
Cedric L. Richmond, co-chairman of the Biden campaign, said the ruling was a call to voters to reject Trump at the polls.
“Trump’s courts have left our country vulnerable to attacks from within,” Richmond said in a written statement. “They have removed the guardrails that would protect us from a president who would become a dictator.”
Becker, the Election Research Center president, said it was hard to imagine the Senate convicting the president in an impeachment trial because Trump has been acquitted in two impeachment trials and the intense political polarization of the U.S. Monday’s ruling constrains the judicial system, leaving the public as the primary means of holding the president accountable, Becker said.
“There is one primary tool to prevent corrupt and unscrupulous individuals from misusing the executive branch: voting,” he said.
