The term of the Supreme Court of the United States just ended will live in infamy.
Stripped of the legal gobbledygook, the court has crowned the president king, decapitated the administrative state and said that bribing a public official is okay so long as the money changes hands after the official act.
The justices have neutered the government’s ability to deal with the difficult challenges of modern, technological life. Climate change, food and drugs, AI, social media. All these issues and more will be handled by the courts, not the executive branch administrative agencies, even if they are better equipped to deal with the problems.
And the court has radically transformed the relationship between the president and the American people. It has made it difficult, if not impossible, to hold the president accountable for criminal acts committed in office.
Justice Ketanji Brown Jackson, in a sizzling dissent, called the Trump immunity decision a “new paradigm,” framing a world where whether the president will be exempt from legal liability for murder, theft, fraud or any other reprehensible criminal act. Everything will turn on whether the president committed the act in his “official” or in a private capacity, such that the answer to the immunity question will always and inevitably be: It depends.
After piously declaring that the president is not above the law, the court, in an opinion crafted by Chief Justice John Roberts, created a presumption that the president is indeed above the law for all of his official acts.
The very court that held that reproductive rights could be extinguished by the states because neither reproductive rights nor abortion are mentioned in the Constitution stated that the president, even after he leaves office, is absolutely immune from criminal prosecution for “core” conduct within his “conclusive and preclusive constitutional authority,” and presumptively immune from “official acts,” even though the words “presidential immunity,” “official acts,” “presumption” and “core constitutional authority” are nowhere to be found in the Constitution.
The Court did say that the presumption of immunity for “official acts” could be rebutted by the prosecution in a pretrial hearing, with the result subject to appeal before the trial even gets started.
The Framers knew how to grant immunity to public officials if they wanted to. King George III had immunity. He could do no wrong. The Framers gave members of Congress limited immunity for their “Speech and Debate.” At the time, governors in some states had immunity under their own constitutions. Of course, the Framers chose not extend such immunity to the president.
The Constitution makes clear that if the president commits a crime, he can be impeached, removed from office and then prosecuted criminally. This has been the approach for more than two centuries. Until we met Donald Trump, no president in history had been brought to trial for a federal crime.
The main takeaway of today’s decision is that all of a president’s official acts, defined without regard to motive or intent, are entitled to an immunity that is at least “presumptive,” and quite possibly “absolute.” So, if a president receives a million-dollar bribe to in advance to appoint a pal ambassador to Jamaica — or the president orchestrates a coup to overturn a presidential election — he is obviously wielding the enormous power of his office in a way that is totally corrupt; but, the majority says, the criminal law (at least presumptively) cannot touch him.
Even assuming the receipt of a bribe is a private, not an official act, the court held that the prosecution may not even go into the motive for the bribe (the ambassadorship) — or the motive for the coup (to remain in power) — unless the government can show that applying criminal prohibitions to that act would pose no danger of intrusion on the authority and functions of the executive branch. Under such a standard, the criminal conduct will be shorn of the evidence.
Under the majority’s reasoning, if the president orders Seal Team 6 to assassinate a political rival? Immune. If he orders the military to hold him in power irrespective of the outcome of an election? Immune. Takes a bribe in exchange for a pardon? More immune than the immunity conferred by the Covid vaccine.
If the president violates the law, if he exploits the trappings of his office for personal gain, if he uses his official power for evil ends. Immune. Why? Because if he knew that he may one day face liability for breaking the law, the court says he might not be as bold and fearless as the radical conservative majority would like him to be.
We now have a new paradigm. The relationship between the president and the American people has shifted irrevocably. In every use of official power, the president is now a king above the law. He need not go to court to assert substantive defenses to criminal charges. He may not even be charged. And if he is clever, he may delay the trial indefinitely with appealable pretrial motions in which he invokes the rebuttable presumption of immunity.
Having given Trump de facto immunity by taking its sweet time to decide the case (the decision came down on the last day of the term), the court remanded the matter to Judge Tanya Chutkan in the District of Columbia. Trump has already trashed Chutkan as a biased judge.
Perhaps some time before the election, she will hold a threshold hearing in an effort to give the government a chance to lay before the public the stark facts of Trump’s criminal conduct in an effort to overcome the presumption of immunity applying to non-core official acts.
Although his attorneys admitted at oral argument that certain of Trump’s conduct on Jan. 6 was private, not official, all of it will be subjected to the new paradigm — a standard without criteria, an alpha without an omega. And if Trump loses, he will be entitled to appeal his case as far as the Supreme Court, with all the attendant delay.
Today’s decision will probably have no legal consequence beyond Donald Trump. In our 230-year history, it has never happened that a president authorized an attack on our democracy, a launch of a “Big Lie” that he had won an election that he knew he lost, a plan to pressure the vice president and state officials to decertify the results of a fair and free election. It is unlikely that this will ever happen again. I sure hope so.
But Trump did it and got away with it. The court handed him a historic legal victory. In the eyes of the public, he remains the Teflon Don. What are other would-be autocrats to think?
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.