Congratulations are due to Former President Trump for making the right Supreme Court nominations while president. Thanks to the handiwork of his three appointees and three other right-leaning Justices, it is now established law that if the President shoots somebody on Fifth Avenue in New York in the line of “official duties,” he enjoys immunity from prosecution.
On January 6, 2021, was President Trump’s speech ordering a crowd, many dressed in combat gear, to march to the Capitol to “save our nation,” part of his official duties? Had Trump shot and killed Vice President Pence after Pence declined to “do what was right” and block the certification of President Biden’s election, would that have been an official act? How about accepting a bribe in connection with a nomination for an ambassadorship?
How about holding the delivery of U.S. military aid to an ally until that country finds damning evidence on the son of your political opponent?
The answers to these questions just became clearer. While the Supreme Court held, “There is no immunity for unofficial acts,” Trump v. United States reads: “Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts.”
If you have not noticed, President Trump has an unconventional concept of truth. If he is re-elected, determines that a political opponent (I’m not naming any names here) is an “enemy of the State that poses a clear and present danger to the people of the United States” and orders that political opponent shot dead, that murder is likely to be considered an “official act” under the Court’s ruling. The Supreme Court would presume the assassination order is an official act if the president claimed that he, as Commander in Chief, believed the political opponent to be “an enemy.”
The opinion also reads: “[T]he Court concludes that the separation of powers principles explicated in the Court’s precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility.”
What is the “outer perimeter of his official responsibility?” That is clear as mud.
The impact of Trump v. United States will be far-reaching. Like President Biden’s poor debate performance on June 27, the decision works to Trump’s benefit. The decision is likely to result in Trump escaping accountabilities for all allegations against him relating to the January 6, 2021, insurrection at the Capitol. Trump v. United States could one day become as infamous as the Dred Scott decision upholding slavery and denying the legality of Black citizenship.
Three justices dissented from the Court’s broad ruling. Justice Sotomayor writes:
“The President of the United States is the most powerful person in the country, and possibly the world. When he 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. Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today. Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.”
The entire Trump v. United States decision, including Justice Barrett’s concurring opinion and Justice Sotomayor’s dissent is 119 pages long. It is worth reading. Have a box of tissues handy. You will need it.
J.E. Dean is a retired attorney and public affairs consultant. He writes on politics, government, and, too infrequently, other subjects.
William Keppen says
What options would the court(s) grant the current president?
John Dean says
Thank you for reading the piece. Forgive me, but I’m not sure what you are asking. Under the decision, Biden could take a number of actions, including acts against Trump, and claim immunity, but I don’t think you are asking about that.
Juliana L'Heureux says
Although President Biden responded in real time to the Supreme Court right wing immunity decision, I was frankly disappointed because his statement did not tell Americans what he would “do” about this ridiculously wrong minded and harmful ruling. He could have empahsized the points made in this opinion piece. Thank you for reemphasing the Trump quote about shooting someone on 5th Avenue. At this point, knowing how Trump’s words mirror his intentions, it is clear to me that he will follow up when given the chance to do so. Trump is unfit to be elected for any office and he is dangerous.
Paul Rybon says
As usual, Mr Dean’s assertions are above silly. There are lots of ways to get rid of a President other than prosecuting him. As the chief justice admonished, let’s not get hysterical here.
John Dean says
Thanks for your comment. Let me give you an example of an assertion that is “above silly.” Let’s say you slept with a porn star before you ran for president while married (2006). Then, before being elected president, you sought to quash the story because its publication would hurt your chances of winning the upcoming 2016 election. An agreement is reached with the porn star, negotiated through your personal attorney, to buy the rights to the story. The story is not run, and you win the election. Then you identify the reimbursement to your attorney as legal fees even though the payments were made to influence the 2016 election, a crime under New York law.
Trump seeks to have his convictions in New York (all 34 of them) reversed on the basis of presidential immunity. That is “above silly.”
It is not too much to imagine Trump, if elected in November, ordering the murder of a political opponent and arguing that it is within his scope of presidential immunity, especially if he falsely claims he believed the opponent was a threat to Trump.
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Similarly, Trump summoned a mob on January 6, 2021 and directed them to go to the Capitol and block the certification of Biden’s win in the 2020 election. The mob’s actions resulted in the deaths of police officers and many injuries. Trump claims that his speech and other actions taken to try to block the certification of Biden’s win were “official acts.” That is “above silly.”
We are on different pages here. I suggest you read Justice Sotomayor’s dissent in Trump v. United States.
Wilson Dean says
It has long been a source of pride among we Americans that “no man (or woman) is above the law.” This Supreme Court decision rejects that concept, no doubt to the applause of the MAGA cult who feels Trump can do no wrong and that his.gut reaction to any situation is better than adhering to any set of principles we are all expected to follow. It appears the majority of the Supreme Court drinks that same cool-aid.
My expectation is that Biden will soon resign. Whomever emerges to run against Trump had better receive the full support of those of us who want to preserve our American value of equality before the law.
John Dean says
Thank you for your comment. You have quoted what might be the most important words in Trump v. United States: No man (or woman) is above the law.”
Happy July 4th. Let’s celebrate it and do all we can to make sure there’s something to celebrate next year (by keeping Trump out of the White House).
trudy wonder says
This ruling is disturbing on its own face, but couple it with several other recent high-profile decisions and it’s a dark day for America.
In the immunity ruling, it’s striking that immunity extends to actions taken by the President “regardless of motivation and without recourse”. So, your example of political retribution stands.
The recent Snyder v. United States (June 26, 2024) decision limits the scope of a federal law criminalizing bribery by state and local officials, calling them “gratuities”… saying things of value given to such officials after taking an official action that benefits the person “tipping” them do not constitute bribery under the statute. Really? The example given involved a $13,000 payment made to an elected official after a requested action was taken in their favor. If this isn’t bribery, what is? (As an aside, when I was in corporate America, I was prevented from accepting any ‘gifts’ valued over $20 from anyone I did business with.)
Last Friday, SCOTUS overturned one of the most important rulings on federal administrative law, cited by federal courts more than 18,000 times – Chevron v. Natural Resources Defense Council – a 1984 Supreme Court ruling that said courts must defer to federal agencies’ expertise when considering legal challenges to a rule. Experts worry its reversal will strip federal agencies of the power to enact regulatory safeguards across a broad spectrum of issues including clean air and public health. Judges – lacking the required medical background or expertise – could now be in a position to decide which medications are safe and effective for American consumers, potentially overruling the FDA, for example.
A day earlier, the Court stripped the Securities & Exchange Commission of a major tool to fight securities fraud. A decision last year sharply limited environmental regulators’ ability to police water pollution in wetlands. You can see where this is going. Criminals and polluters win, American citizens lose. Why? Because our Court has become politicized. Dare I call it weaponized?
John Dean says
Thank you for your comment. The Supreme Court is implementing the MAGA agenda. I agree with you that it is not only Trump v. United States, but some of the other decisions. Very disturbing. Even more disturbing is the likelihood that if Trump is again elected, he most likely would get one or two more nominations to the Court.
Deirdre LaMotte says
The Republican Party has been actively opposing what they call the “administrative state” or the “deep state” for decades, twisted in the belief that any control by agencies over business and industry is an affront to free market capitalism.
Radicals in that party have now appointed a Supreme Court majority that agrees and will promote that theory, gutting federal agencies of regulatory control established by law in all areas of our lives.
These agencies work for the people.
Business and industry work to make a money.
The majority of profits go into the pockets of the wealthy. Think about it. This is the Republican agenda.
And if one has not read Project 2025, you better.
Look it up and then vote blue.
Andrea M Rash says
I have always said that Trump was above the law. My friends laughed at me and said no way! Whose is laughing now?