The Return of the Imperial Presidency

The radical Supreme Court has given Donald Trump everything he asked for and more with immunity.

Credit: Fred Schilling, Collection of the Supreme Court of the United States.

Nearly 250 years ago, the American colonies rebelled against a monarchy. In place of it, after the Constitutional Convention, they set up a Republic where, through democratic elections, a president—not a king—would govern as the chief executive. Unlike a king, the president would be subject and accountable to the laws of the land and the new Constitution.

On Monday, the Supreme Court, filled with partisan appointees bent on destroying well over two centuries of this tradition, disagreed with that foundational premise. “The President is not above the law,” Chief Justice John Roberts wrote in the 6-3 opinion. “But…”

That “but” goes on to do some very heavy lifting. In the case of Donald J. Trump v. United States, the High Court held that the President does in fact enjoy king-like, presumptive, absolute immunity from criminal prosecution for actions taken within the ambit of his “official” duties, while observing that no such protection exists for “unofficial” duties.

The Court then kicked it back to the federal district court, where Judge Tanya Chutkan must now determine what does and does not constitute an “official duty” in Trump’s case. The problem is, of course, that “official duties” form a web that stretches quite far when you’re the president. And in the hands of a rogue executive like Donald Trump, the ruling puts few real constraints on how far the President can take things with utter impunity.

In today’s piece, I’ll lay out the basics of the ruling and give some examples of how it could apply to Jack Smith’s January 6 case against Trump. I’ll then zoom out a bit and discuss how such a broad expansion of presidential powers invites the return of the Nixon-era “Imperial Presidency”—or far worse. Finally, as is my custom when there are such dark developments, I’ll offer a glimmer of hope about how this could play out over the next few months in Judge Chutkan’s courtroom.

Presumptive immunity for official acts

The crux of the ruinous opinion lay in these words: “The president,” Roberts wrote, “…may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.” 

“Core constitutional powers” may sound like some kind of manageable set of things, but the reality is that they are hopelessly broad. And with this green light from the Court, they are now ripe for abuse. Such “core powers” include, for example, the power to pardon, the power to command the military, and the power to order the Justice Department to enforce the laws.

The idea that core powers of the presidency are beyond the reach of our laws should the president commit criminal acts is not only disastrous policy, it is anti-textual. After all, the Framers knew how to create immunity. They did so expressly for Congressmembers in the Speech or Debate clause:

“Senators and Representatives . . . shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”

If the Framers wanted to give the Executive Branch absolute immunity, they would have said so, just like they did for Congress. Instead, the Framers made it clear that the president is not immune from prosecutions for official acts even after impeachment. And they did that expressly in the Impeachment Clauses.

The Impeachment Clauses state that “official” conduct like bribery—where the officer acting in an official capacity is the entire point of the bribe—is an impeachable offense. Importantly, they also specifically state that prosecution for that same act is permissible even after impeachment:

“the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law.” 

The majority completely ignores this clear will of the Framers, proving once more that they are textualists only when convenient to support their agenda.

When presidents are charged with crimes, judges must now determine whether there is absolute immunity because the acts fell within so-called “core constitutional powers” of the presidency or are otherwise presumptively immune as “official acts.” As I’ll discuss below, that will give the president very wide latitude with no risk of criminal prosecution—a terrifying playing field in the hands of a criminal like Trump.

The bar is so much higher now

The core powers of the presidency already include the entire military and Justice Department. I’ll get to what that might mean in the wrong hands later in the discussion. For now, I want to discuss how much harder it will be to prosecute Trump under the new immunity rules.

The “core powers” allegations are automatically off the table, so that means Trump’s corrupt discussions with members of the Justice Department can’t be charged—and the Court expressly said so in its opinion.

Even if Trump’s criminal acts were not among his “core” powers, the opinion imposes a strong presumption of immunity for any “official” actions. That presumption can be rebutted, but that is a daunting task, as legal correspondent Lisa Rubin explains. Here’s how the conservatives and radicals on the Court set that up.

First, the Court says the correct and threshold question is whether prosecuting the official act in question “would pose any dangers of intrusion on the authority and functions of the Executive Branch.” Suffice it to say, most attempts at prosecution would fail right out the gate, and Trump will have strong arguments that this wipes out a great deal of the January 6 case. How could a prosecution not interfere in some way with the authority and operations of the White House? Take, for example, his pressuring of Mike Pence to violate his oath of office. Trump will argue that charging him based on these discussions would intrude upon his authority and the functioning of his office because Trump needed to be able to speak frankly with his Vice President.

Second, even if the prosecution somehow did not interfere, under the new rule the government cannot even use evidence of alleged official acts to make its case. Another way to understand this is, as Rubin notes, “If it can’t be charged, it can’t come in, even to inform the jury’s understanding of a president’s knowledge or intent.” That wipes out a whole other category of evidence.

And third, when deciding what is and is not official, courts cannot consider a president’s motive or purpose. This is particularly galling because the why of an act is almost always strong evidence of whether it was done with improper intent or not. As Los Angeles Times legal correspondent Harry Litman observed, “In dividing official from unofficial conduct, courts may not inquire into the President’s motives. But bad motives are what distinguish crim[inal] conduct; they're the soul of the criminal law.” 

Some real world examples help illustrate how absurd this new immunity test is. The Court now says, definitively, that Trump’s attempts to leverage the Justice Department to do his dirty work and create the appearance of an actual investigation into nonexistent voter fraud is subject to absolute immunity. Why? Because Justice Department affairs fall squarely within the core powers of the presidency, even though traditionally there should be DoJ independence.

So Trump can’t be charged with a crime for having conspired with Jeffrey Clark to pressure the Georgia legislature to reconvene under false pretenses. But more than that, because he can’t be charged based on those facts, those facts can’t even come into evidence, even to show Trump’s corrupt intent.

Also off the table? All the times Trump was told by his own officials that the election was fair and fraud-free. Those are now things that can’t be separately charged because of Trump’s immunity, and so evidence of them can’t come in.

The ruling is now also impacting Trump’s recent criminal conviction. Trump’s legal team has seized upon the immunity ruling to seek to overturn the jury verdict in Manhattan. They have written a letter to the judge asking for leave to file a motion to challenge the verdict, and prosecutors have agreed to postpone the sentencing hearing. Trump’s defense counsel argues that some of the evidence presented in the Manhattan case included immunized discussions while Trump was in the White House. Under the rule announced by SCOTUS, this evidence should never have been introduced, they contend, and therefore the verdict by the jury must be overturned. It remains unclear whether this will prove enough to order a new trial with such evidence excluded. 

It is hard to overstate the dangerous latitude this grants the presidency. So long as the president is acting within an official capacity, those actions should never see the inside of a courtroom under the Court’s new test. The majority reasons, in a tortured way, that such a rule is necessary so that immunity is not undermined through an end-run around the test because “the ‘intended effect’ of immunity would be defeated.”

But as discussed below, what it has set up in its place is an end-run around our very laws.

A “law-free zone” around the President

The dissenting opinions illustrate not only the upside down reality created by the ruling but also its terrifying consequences. Justice Sonia Sotomayor lays it out in stark terms:

“When [the President] uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.” 

Justice Ketanji Brown Jackson pointed out the absurdity and danger of the Court’s immunity test.

“The official-versus-unofficial act distinction seems both arbitrary and irrational, for it suggests that the unofficial criminal acts of a President are the only ones worthy of prosecution. Quite to the contrary, it is when the President commits crimes using his unparalleled official powers that the risks of abuse and autocracy will be most dire.”

It is helpful to recall the unanimous panel decision by the Court of Appeals for the D.C. Circuit, which observed that “it would be a striking paradox” if a president’s oath to enforce the laws also allowed him to break them. As Kyle Griffin of MSNBC observed, Justice Jackson echoed that in her dissent, noting that the president must “take Care that the Laws be faithfully executed, yet, when acting in his official capacity, he has no obligation to follow those same laws himself.”

In the hands of a determined despot, the new immunity rule could act like a cloak of invincibility. As Norman Ornstein of The Atlantic wrote, the nightmare scenarios are legion: “If Trump is elected again, he can invoke the Insurrection Act, use the military to shoot down peaceful protestors and be immune from any penalty.” Based on the words of the Court and its rule, I cannot find fault with this conclusion.

The Imperial Presidency Redux

Over 50 years ago, the Supreme Court and Congress put limits upon the power of the White House in the face of Nixon’s corruption and criminality. That disgraced president infamously stated that “if the president does it, it’s not illegal.” As noted by author Garrett M. Graff, who wrote a Pulitzer Prize finalist account of Watergate, when Nixon said those words aloud, “no one believed that was true.”

Presidential historian Tim Naftali, who is also an expert on the Nixon administration, issued a passionate condemnation of the opinion on CNN: 

“This decision was written as if America has never had a corrupt president. This decision is blind to the ways in which presidents have used their core constitutional authorities to hurt the American people. In the 1970s, the Congress of the United States, the courts and the American people pushed back against something that was called the ‘Imperial Presidency’…one that used the cover of national security—one of the core presidential authorities—to wiretap people, to break into their homes, to break into their psychiatrist’s office, to audit their IRS files, all under the color of what the Supreme Court would describe today as a core constitutional authority. 

Now, those were official acts according to this Court, because…your motive as president doesn’t matter. If you do this in order to hurt an American citizen…to hurt a political opponent, according to this Court, it doesn’t matter. You have ‘just talked’ to the CIA, you have ‘just talked’ to your Attorney General, you have ‘just talked’ to the Secretary of the Treasury. By doing so, you are engaging in official acts. This opens the door to abuses of power, the kinds… that we had in the Cold War at the time of the Imperial Presidency. It is beyond belief that a court of people who lived through the 1970s would have forgotten how it was that Richard Nixon abused power.”

Today’s Supreme Court has wound the clock back 50 years, returning us to the days where a corrupt and criminal president can act with utter impunity. After all, as historian Michael Beschloss asked, “was Nixon committing an ‘official act’ and deserving of immunity” when he committed obstruction of justice? According to this Court, he would have been entitled to a presumption of such immunity.

A mini-trial exposing Trump’s many criminal actions

The Supreme Court’s decision throws the question of immunity back to Judge Chutkan to apply the new test. To do so, however, she will need to hold an evidentiary hearing in order to parse which alleged actions and what evidence should be excluded as part of Trump’s broad presidential immunity and what should remain in the case.

The interesting twist, as reported in the New York Times, is this: Such an evidentiary hearing could prove quite expansive and act like a mini-trial, placing the government’s evidence before the American public long before the actual trial, and, importantly, possibly even ahead of the November election.

A key question will be whether Trump was acting in an unofficial capacity because the president ought to have no involvement with something like a state election. The organization of the fake electors, through a scheme concocted between him and his attorneys Kenneth Chesebro and John Eastman, comes to mind. So does Trump’s firehose of lies about election fraud, which he deployed to convince state officials to overturn the results in their states. 

Judge Chutkan will still need to hear evidence around Trump’s efforts to pressure Pence to overturn the election, as well as Trump’s deliberate inaction on January 6 and his attempts to exploit the mob to delay congressional certification of the election, to determine if they were official or unofficial actions.

This hearing might well happen before the election, after the sides have filed their respective motions around it. Looking at the calendar and taking into account Judge Chutkan’s penchant for moving things along, it could even happen in the weeks leading up to the November ballot. While the evidentiary hearing is not a trial before a jury, it could serve as a trial of sorts in the court of public opinion.

This is admittedly a small but possibly pivotal silver lining to this otherwise horrific opinion. Given that the ruling would grant nearly limitless powers to whoever is elected the next president, it is more imperative than ever to ensure that the winner is not Donald Trump. Putting his crimes around January 6 back before the public, perhaps right before the election, could prove decisive in this battle—one that cannot, for the sake of our Republic, be lost.

In the words of Justice Sotomayor’s eloquent dissent,

“Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop.

With fear for our democracy, I dissent.”