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.
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