These scenarios may sound like part of an apocalyptic future, but the clear reality of the 6-3 opinion ensures that the president has ample room to carry out his duties without fear of criminal prosecution, which could embolden Trump as he sets his sights on a return to the White House after facing two impeachments and four indictments in the past year and a half.
The ruling is significant because Trump, the presumptive Republican presidential nominee, has made no secret of his intention to pursue the same boundary-busting practices that have defined his four years in office, sparked criminal and congressional investigations and raised troubling questions about the scope of presidential immunity. Monday’s landmark ruling all but resolved the issue in Trump’s favor.
“I think in the long run, it will broaden the scope of what the president is willing to do because he understands that there are gray areas that the Supreme Court has laid out,” said Julian Zelizer, a political history professor at Princeton University. The effect of the ruling, he said, will be to “broaden the scope of what is permissible,” giving the president ample protection from conduct that could be criminal.
The decision, written by Chief Justice John Roberts, did not dismiss the lawsuit accusing Trump of conspiring to overturn the 2020 presidential election, as Trump had hoped, and left intact the long-established principle that there is no immunity for purely personal acts. But it significantly narrowed the scope of the case by finding that the president enjoys absolute immunity for core constitutional duties and is entitled to a presumption of immunity for other official duties.
“This is a dramatic way of vocally endorsing the unitary executive theory,” said Cornell University law professor Michael Dorf, referring to the theory that the U.S. Constitution gives the president extra-legal powers.
In practical terms, the court’s opinion means that Judge Tanya Chutkan will have to conduct further fact-finding analysis to determine how much of the conduct alleged in Special Counsel Jack Smith’s indictment can remain part of the case.
Crucially for Trump, the one area the conservative majority deemed absolutely off-limits for prosecutors was his command over the Justice Department, including his direction to Justice Department leadership after the 2020 election to conduct what prosecutors called a “sham” investigation into false claims of election fraud, and his attempts to use the department’s powers to further his fruitless efforts to stay in power.
While the opinion does not create new law regarding White House-Justice Department interaction, Roberts asserted that the President has “exclusive authority over the investigative and prosecutorial functions of the Department of Justice and its personnel” and can “consult with the Attorney General and other Department of Justice officials regarding potential investigations or prosecutions in fulfillment of his constitutional duty ‘to see that the law is faithfully executed.'”
“I think this is an extraordinary opinion, and I can imagine President Trump using it to completely destroy the independence of the Department of Justice,” said Kent Greenfield, a law professor at Boston University.
The opinion from the nation’s highest court is good news for President Trump, especially since he and his allies have signaled they want to use presidential powers, including possibly Department of Justice investigative powers, to pursue retaliation against political opponents.
Following his conviction in New York in May in a hush-money case, Trump suggested he might retaliate against his 2016 opponent, Hillary Clinton, if he were to return to the White House.
“The first lady and the former secretary of state, when you think about it, wouldn’t it be a terrible thing to put a former secretary of state, the first lady, in prison? Wouldn’t it be a terrible thing to do? But they want to do it,” Trump said in an interview with Newsmax. “It’s a very terrible path they’re leading us down. And there’s a good chance that that could happen to them.”
More recently, he reposted a meme suggesting that former Representative Liz Cheney, the No. 3 House Republican who broke with her party and voted to impeach President Trump over the January 6, 2021, riot at the U.S. Capitol, committed treason and should be military-trialled.
The posts and comments have raised concerns given that Trump’s interactions with the FBI and Justice Department as president have shattered longstanding conventional wisdom and become a central part of special counsel Robert Mueller’s investigation into whether he obstructed investigations into possible Russian interference in Trump’s campaign in the 2016 election.
Trump has urged FBI Director James Comey to investigate his aides before firing him a few weeks later, criticized his own handpicked Attorney General Jeff Sessions for recusing himself from the Russia investigation, and called for the firing of Special Counsel Mueller.
In his report, Mueller did not conclude whether Trump illegally obstructed the investigation, citing a Justice Department legal opinion that says a sitting president cannot be indicted, but noted that the president does not enjoy “total and permanent” immunity for using his executive power to obstruct justice.
To be sure, safeguards still exist that could prevent most presidents from testing the limits of impunity.
The threat of impeachment by Congress remains — President Trump was impeached over his January 6 call with the Ukrainian president but was acquitted by the Senate — as do the practices, procedures and norms that govern the Washington bureaucracy.
Justice Roberts sought to downplay the impact in his majority opinion, saying Justice Sotomayor struck a “chilling tone of catastrophe totally out of proportion to what the Supreme Court is currently doing in practice.”
But even if this ruling does not directly expand the scope of presidential power, it could certainly benefit a president determined to abuse that power.
“Not every president will take advantage of this, but I think the lesson from Donald Trump is that it’s possible,” Zelizer said, “or the lesson from Richard Nixon is that it’s possible. And that ‘potential’ is the lesson you’re looking for.”
