In a sweeping decision that constitutionalizes the modern reality of the imperial presidency, the U.S. Supreme Court has established near-total criminal immunity for Donald Trump’s official acts while he was president. It’s an outcome that would have astonished the nation’s founders, who feared precisely that if the chief executive amassed too much power, the republic would turn into an empire.
The conservative majority in the 6-3 decision left a little bit of room to prosecute Trump for unofficial or private acts committed while in office. But it defined such acts narrowly and said lower courts couldn’t examine Trump’s motives when determining whether a given act was official or not. The result will mean that most, maybe all the federal criminal charges against Trump for conduct related to Jan. 6 will get dismissed. And none has any realistic chance of going to trial before the presidential election in November.
In dissent, Justice Sonia Sotomayor, joined by the other two liberals, condemned the decision in the harshest terms. “In every use of official power,” she wrote,” the president is now a king above the law.”
This result would be deeply disturbing to the nation’s founders. Nothing in the Constitution’s text or original public meaning supports the immunity rules the court crafted.
To the contrary, as Sotomayor pointed out in her dissent, the Constitution specifically anticipates criminal prosecution of a president, noting that after impeachment, a president removed by the Senate “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
And Alexander Hamilton, in Federalist 69, specifically distinguished the president from the king of Great Britain because he could be impeached, removed and subject “to the forfeiture of life and estate by subsequent prosecution.”
Thus the constitutional basis for the court’s decision is entirely grounded in judge-made doctrine. And judge-made doctrine evolves over time, reflecting changing historical and political circumstances.
The single greatest transformation in the American constitutional system since 1789 is the rise of what historian Arthur Schlesinger Jr. famously called the imperial presidency. A modern president controls a military force greater than any other in the world, a projection of power that includes nuclear weapons. A modern president is surrounded by a huge executive branch and a bevy of executive branch officials who work for the president.
In the light of those modern developments, the Supreme Court has, over the last 60 years or so, gradually given the president more and more insulation from ordinary legal processes — far more than the framers would have dreamt of. The basic argument is that the president, as leader of the free world, needs to be able to do the job without too much interference. Unspoken is the understanding that the modern president is, in practice, much more like an elected ruler of a global empire than like the weak leader of a small republic restricted to the area of today’s I-95 corridor, as early presidents were.
To be sure, the Supreme Court made Richard Nixon hand over the Watergate tapes. It subjected Bill Clinton to testifying in the Paula Jones case. It has rhetorically insisted — in Trump’s case and in the past — that the president is not above the law. But the court in 1982 also gave the president immunity from civil suits for his official actions.
The Trump immunity decision extends that protection to criminal immunity — all in exercise of the same core idea that the all-powerful president needs to be free and undistracted to run the empire.
The constitutional takeaway is that the court’s six conservatives, all of them supposedly originalists who care about the text of the Constitution, deviated from their jurisprudential principles to create criminal immunity for Trump. The three liberals, in turn, made originalist arguments. Amy Coney Barrett departed from part of the majority’s argument and joined part of Sotomayor’s opinion on the narrow question of whether the details of a president’s official acts could be introduced as evidence in a trial to prove he committed a criminal unofficial act. That was sensible, but fell short of what her mentor, Antonin Scalia, would have said about the majority’s invention of immunity unimagined by the framers.
The court’s grant of criminal immunity operated in several steps, each of which affects a part of the Jan. 6-related prosecution of Trump.
First, the court held that the president’s official acts are presumed entitled to immunity unless the government can show that a given criminal charge would pose “no dangers of intrusion on the authority and functions of the executive branch.” As Sotomayor noted, most conceivable charges related to official acts would pose some danger of intrusion, so the immunity granted is effectively absolute for official acts. For example, the Supreme Court said that the charges against the former president for conspiring with the acting attorney general to change the election results were based on official acts and would therefore have to be dismissed.
When it came to the charges that Trump tried to pressure Vice President Mike Pence to refuse to certify the election, the court formally said that immunity should be presumed and the government would have to prove to the lower court that there was no danger of intrusion on the function of the executive branch. The majority opinion gave a long disquisition on how important it was for the president and vice president to be able to discuss policy, and left little doubt that the answer would be that immunity should be granted.
As for the charges that Trump conspired with his own campaign advisers to pressure state officials to change the election returns, the majority said that the lower courts would have to engage in intensive, fact-specific analysis of each charge to see whether it fell within Trump’s official responsibilities.
Some of these parts of the indictment might conceivably survive the lower courts’ scrutiny. But even here, the majority opinion appeared to give some credence to Trump’s view that as president, he might have the official power to speak to state officials about making sure a presidential election ran fairly. That’s a really terrible theory, but the lower court might adopt it and this Supreme Court seems unlikely to overturn the lower court if it does.
That leaves the criminal allegation that Trump incited the crowd on Jan. 6 to interfere with the counting of electoral votes at the U.S. Capitol. Once again, the court offered a lengthy discussion on why it’s so important for the president to be able to speak to the public, suggesting that “bully pulpit” speeches would count as official acts.
The court then left some small amount of room for the lower courts to say that when speaking as a candidate, for example, the president may be speaking unofficially. It concluded that it all depends on context, and directed the lower courts to look at the context. It’s hard for me to imagine this part of the indictment surviving the lower courts’ analysis, although my Bloomberg Opinion colleague Stephen Carter sees it differently.
The Supreme Court’s decision will not affect the New York criminal conviction against Trump for conduct before he became president nor the federal prosecution in Florida for keeping secret documents after he left office. The Georgia prosecutions might be affected, as the state courts will now have to determine whether Trump’s actions in trying to influence vote-counting there were official or unofficial.
In sum, the Supreme Court has gutted the historic effort to hold Donald Trump legally accountable for his efforts to overturn the 2020 election. That’s astonishing and tragic. The court’s decision reflects the gradual expansion of the imperial presidency.
A president tried to break our democracy by overturning the results of an election that he lost, and the Supreme Court has responded by protecting him from criminal prosecution. Our founders would be horrified. The Caesars would nod in approval.
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People.”
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