I asked my Post Opinion colleagues Jason Wyrick and EJ Dion Jr. for their reaction. Is this ruling, as Justice Sonia Sotomayor put it, dangerous to our democracy?
Alexi McCammond: What message will this ruling send to Donald Trump if he wins the election?
EJ Dionne Jr.: This is a disastrous decision and tells us that we cannot rely on the current majority of the Supreme Court to protect the country from Trump’s abuses of power if he returns to the White House. Trump now knows how much room he has for abuse. The closing words of Justice Sonia Sotomayor’s dissenting opinion say it all: “When those who hold that office abuse their public power for personal gain, the criminal law, which we must all obey, will provide no backstop.”
Jason Wirick: EJ, would trying to prosecute Joe Biden be one of those abuses? Because this decision would thwart Trump’s ambitions to pursue “retribution” against Biden. Would this decision affect Trump’s actions if he is re-elected? Well, my guess is that his actions will probably be somewhat less restricted. But he was largely unrestricted at the end of his last term before he knew if he had immunity.
EJ: Jason, I see you’re trying shrewdly to make this awful, precedent-breaking decision look as good as possible! In theory it would be harder to indict a president, but the partisan nature of the majority makes me doubt it.
Jason: “I thought from the beginning that this was a terrible prosecution and that it would be terrible for the country. I was also critical of Trump’s immunity defense. So I’m glad that the prosecution has been reduced, but I have mixed feelings about whether this was the right way to go about it.”
EJ: Jason, I’m glad you think the court handled it poorly. What do you think went wrong?
Jason: I think it would be a mistake to prosecute a president when there is no overwhelmingly clear crime, and especially to rush to prosecute in an election year. I think the majority has every reason to worry that, as Chief Justice John G. Roberts put it, “the executive branch will eat itself as successive presidents freely prosecute their predecessors.” That said, as justices, we might allow the executive branch to begin to eat itself, hoping that Congress and the executive branch will eventually show greater wisdom and stop the process. Roberts saw the threat of a debilitating legal battle looming and decided that the Court should intervene.
Alexi: EJ, you don’t seem to think that Sotomayor was overreacting when she said she felt “fear for our democracy” in response to this ruling.
EJ: I think Justice Sotomayor got it right. After accusing the dissenting justices of striking a “chillingly pessimistic tone,” Justice Roberts wrote in his decision that “the President is entitled to at least a presumption of immunity from prosecution with respect to all his official conduct.” This broad view of immunity is It’s chilling. “Presumed immunity” opens the door to the kind of widespread abuse of power that Sotomayor warned about.
Jason: EJ, I agree that the “official acts” test is complicated. I can hear from Roberts’ tone that he is frustrated that he had to craft this test and announce the scope of presidential immunity in such a short time frame. The reason for this short time frame, of course, is the Department of Justice’s determination to convict Trump before the election and the willingness of lower courts to indulge in political haste. That in itself is outrageous. The election timeline should have been irrelevant.
EJ: Jason, let’s look at the timeline. It is truly outrageous that the Republican-controlled Supreme Court (let’s call it that) delayed the trial of the most significant charges against Trump until after the election. Special Counsel Jack Smith asked the justices to hear the case expeditiously in December. The justices refused. The justices heard the case on February 28th, and the public had to wait another four months for a decision. It is hard to believe that the majority did not understand the consequences of their stall. And the further delays that would result from forcing further arguments in the lower courts are like icing on this lawless cake.
Jason: The talk of delay is nonsense. As Justice Roberts pointed out in his opinion, the Court moved quickly through this case. Under normal circumstances, the case would have been placed on the docket for next term to allow sufficient time for argument. But I believe the Court wanted to resolve it before Trump won the election and made it irrelevant.
Alexi: Putting aside the debate over timelines, one thing is certain: voters will never get a clear answer as to whether Trump committed a crime in trying to overturn the results of the 2020 election. To what extent do you accept that fact?
Jason: I don’t believe that at all. Voters are well aware of what Trump did on January 6, 2021. It was publicized in real time. There was an impeachment trial. There were extensive special committee hearings on it.
EJ: The Supreme Court could have simply upheld the Circuit Court’s decision all along, rather than constructing this mess to justify an imperial presidency.
Jason: That might have been the case. That would have given Democrats a better chance of getting a conviction for Trump before the election. But they decided to let the matter go, as even Smith had previously called for. As I’ve said before, I’m not happy with the decision. But I do fault the Biden Department of Justice for waiting until close to the election to indict the president’s opponent on untested charges, and then pressuring the court to make a rushed decision.
EJ: What was the Department of Justice supposed to do? Just let Trump’s lawlessness continue? Don’t blame Smith for a decision the majority spent months considering!
Jason: Yes, EJ, the courts have delayed the trials. But I don’t think they see their role as speeding up the trials. If you ask Roberts, he’ll say that our job is to interpret the Constitution correctly, and it’s not our problem to ensure that we get the trials by a certain time. But I’m sure many Democrats, like you, would see that as escalating attacks on the courts.