Jacquelyn Martin / AP
Celeste McCall, of Washington, reacts in confusion, Monday, July 1, 2024, outside the Supreme Court in Washington after decisions were announced. “I’m confused I was told [Trump] has no immunity for unofficial acts,” says McCall. “I don’t even know what that means. I’m beyond confused.”
Tuesday, July 2, 2024 | 2 a.m.
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The Declaration of Independence, which was voted on 248 years ago this week, makes the case that England’s King George III violated the inalienable rights of the colonists to self-determination and equality under the law. It accuses the king of ignoring the outcome of elections unless the results favor his chosen candidates, allowing fake electors to take actions without the consent of the people, holding sham trials to protect his political allies while persecuting his political enemies and ultimately stoking the fires of insurrection in the colonies.
As a result of these egregious actions, the Founding Fathers concluded that, “A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.”
That sentiment, and its corollary ideal of “equality under the law,” has been echoed throughout the history of the United States, perhaps most poignantly by Theodore Roosevelt’s statement that “No man is above the law and no man is below it; nor do we ask any man’s permission when we require him to obey it. Obedience to the law is demanded as a right; not asked as a favor.”
We agree. Unfortunately, the current conservative majority of the U.S. Supreme Court does not.
On Monday, in a 6-3 decision that split along partisan lines, the court proclaimed loudly that the president of the United States is above the law, by granting absolute immunity from criminal prosecution for “actions within (the president’s) ‘conclusive and preclusive’ constitutional authority” and the “presumption of immunity” for “acts within the outer perimeter of (the president’s) official responsibility.”
The existence of the two categories means that the court rejected Donald Trump’s absurd arguments about having absolute immunity for all of his actions while was in office. However, the broad and sweeping examples of the first category, which include the president’s authority to grant pardons and act as commander in chief of the armed forces, invites abuse. Under the court’s ruling, both Congress and the courts are prohibited from examining, legislating or adjudicating cases related to these and other constitutional powers reserved for the executive branch.
As Justice Ketanji Brown Jackson described in her dissent, “Thus, even a hypothetical president who admits to having ordered the assassinations of his political rivals or critics, or one who indisputably instigates an unsuccessful coup has a fair shot at getting immunity under the majority’s new presidential accountability model.”
Justice Sonia Sotomayor went even further, noting that “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.”
“Orders the Navy’s SEAL Team 6 to assassinate a political rival? Immune,” she said. “Organizes a military dissenting coup to hold onto power? Immune,” she continued. “Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune. … If the (president) misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop.”
The Supreme Court’s ruling raises the urgency of defeating Trump because now, more than ever, we are forced to rely on the character of presidents, their respect for law and their integrity.
Trump fails on all those scores.
Trump has already been convicted of 34 felonies and has dozens of additional charges still pending. Should he win this year’s presidential election and become head of the executive branch of government in January, Trump could use his executive authority to end the federal cases against him, knowing that his official acts immunity would protect him from having that decision reviewed or overturned.
Moreover, the immunity also clears the way for Trump, Joe Biden or any other president to weaponize the Justice Department and pressure state prosecutors to drop any charges against them. If that failed, Trump could simply order the assassination of those prosecuting or testifying against him under the pretense that it was a necessary action to “protect democracy” or any other false reason his corrupt mind concocts. Trump would have absolute immunity for the order, and the military officers carrying it out would have no choice but to follow the command.
While Article 92 of the Uniform Code of Military Justice presumes that orders are “lawful,” historically, military officers who disobey a superior officer can present evidence that the order was unlawful or lacked a military purpose. However, under the Supreme Court’s latest ruling, if the president gave the order, such evidence couldn’t be heard or reviewed because the president’s authority as commander in chief is beyond review, eliminating the nuclear failsafe of human morality within the ranks of the military.
Such a policy would have led to the acquittal of Nazi officers who committed atrocities at the behest of Adolf Hitler, yet our court thinks it is the appropriate policy for the United States.
Keep in mind, Trump ordering troops to fire on Americans is not a fantasy. According to former Defense Secretary Mark Esper, during the George Floyd demonstrations in Washington, Trump wanted the military to open fire on protesters. Only the fact that Esper and other military officials could refuse such an order as illegal prevented bloodshed. That protection has now been removed by the Chief Justice John Roberts’ Supreme Court.
Likewise, Trump could order troops to open fire on immigrants crossing the border simply for stepping foot on American soil. The Supreme Court has unleashed a tidal wave of potential horrors and abuses on the nation.
Outside of the military context, the court’s ruling means a president can direct federal agencies to funnel business to the president’s political supporters, opening the door to unprecedented corruption and self-dealing. As head of the executive branch, the president would have immunity from prosecution and as the sole arbiter of pardons, he could pardon anyone who is prosecuted for conspiring in the scheme with him.
Trump could demand bribes for pardons too. The only possible remedy would be a farfetched one in this political climate: impeachment and conviction in Congress. We already know the bar is too high for such an outcome, and the morals and ethics of the Senate too low.
Similarly, a president could take billions in bribes from foreign powers or multinational corporations in exchange for the promise of a signature or veto on a bill. While legislative and foreign relations powers are shared with Congress, the decision to sign or veto is exclusive to the president and laid out in the Constitution — providing absolute immunity.
In short, the levels of corruption afforded by the court’s decision are staggering. Under the court’s ruling, a president really could shoot a person on Fifth Avenue and, if they claim it was an official act, face no consequences whatsoever. Just as chilling, under this ruling it might not be possible to review the circumstances of such a murder because so many of the president’s choices have been removed from any meaningful evidentiary review.
Biden versus Trump age issues aside, Monday’s ruling presents a clear and present danger to our democratic system of checks and balances as well as the liberties we hold so dear.
The country should not have to live through an imperial presidency that cuts at the heart of what the founders thought they were fighting and dying to change during the Revolutionary War — not now, not ever.
Only voters can fix the mess we are in. They can do so by ensuring that corrupt tyrants like Trump come nowhere near the White House and that Democratic majorities control both the House and Senate so that the threat of impeachment (and the removal of the shield of immunity) will be material enough to chasten an otherwise unrestrained Trump. From now on, we must apply the sternest tests of character to any presidential candidate, as the Roberts court’s violence against our country leaves the nation nearly defenseless legally.
Americans must choose what kind of country we want for our children. If we want a constitutional republic that fulfills the promise of the Declaration of Independence and includes a robust system of checks and balances, we must vote for it. We must vote for honorable people who will not dishonor the ideal of equality under the law.
If we instead choose to ignore the warning signs of a tyrannical king and his kangaroo court, we do so at our peril. Instead of focusing on America’s greatness, we will spend the next hundred years trying to revive the land of the free and home of the brave from the trash heap of history. The choice is ours.
