By granting almost total immunity to the president in the exercise of his functions, the Supreme Court of the United States marks the culmination of a long work of undermining the principle of checks and balances so dear to American democracy. Here we are in the era of the imperial presidency, with unparalleled risks when a criminal like Donald Trump seeks to break down the doors of the White House by all means.
The Supreme Court’s decision, made by a majority of six Republican justices, will be the final blow to Donald Trump’s trial for the failed insurrection of January 6, 2021. It is indeed possible to criminally prosecute an outgoing president for acts committed outside his duties, but the Supreme Court has not outlined the path to achieve this. It has stuck to developing the broad principles surrounding presidential immunity, deferring the assessment of evidence to lower courts.
Donald Trump is facing three separate criminal trials, for attempting to overturn the results of the 2020 election, for attempting to interfere with the certification of the vote in Georgia, and for possessing and obstructing efforts to retrieve classified documents. In total, he faces 54 charges for actions taken in the final stretch of his shameful presidency. The courts will have to sort out the fine line between Trump’s actions in office, for which he now enjoys immunity, and his actions as an individual (which are still subject to prosecution). Suffice it to say that, from delays to appeals, Trump will have the chance to stretch the justice system’s rubber band to its breaking point.
Even his recent conviction for 34 felony counts, for buying the silence of porn star Stormy Daniels, weighs in the balance. The Republican candidate is seeking to have his conviction overturned based on the Supreme Court’s offering. For now, the sentencing, which was scheduled for July 11, has been postponed until September 18.
Basically, the Supreme Court has just decreed that the president is the equivalent of “a king above the law” for the duration of his term. The expression comes from one of the three dissenting Democratic justices, Sonia Sotomayor. In her remarks delivered on the spot, she predicted dark days for American democracy. Justice Sotomayor listed the acts potentially protected by this immunity: the assassination of a political rival by a military commando, the acceptance of a bribe in exchange for a presidential pardon, the organization of a coup d’état to cling to power.
Chief Justice John Roberts trivialized these risks in his analysis, noting that immunity is necessary to prevent political opponents from settling scores through the courts from one presidential cycle to the next. This is a weak argument, since the judicial system already provides safeguards and guarantees of independence: the presumption of innocence, the right to a fair trial, and the validation of charges by a citizen grand jury are its pillars.
The widespread idea in the Republican camp that Joe Biden is seeking to settle scores with his predecessor is twisted. Donald Trump’s presidency is unique in history for its turpitude, its immorality, its criminality proven beyond a reasonable doubt in the Stormy Daniels affair. Trump discredits his opponents, democratic institutions and the rule of law. He corrupts as he lies. By advancing the idea that immunity will encourage the exercise of a vigorous and fearless presidential mandate, the Supreme Court has just offered Trump an irrevocable license to smear and degrade his opponents if he is re-elected next November.
This decision is a project of expanding presidential powers that is coming to fruition. Five Republican justices on the Supreme Court devoted themselves to expanding presidential prerogatives when they were lawyers in the Ronald Reagan and George W. Bush administrations. This reinforcement of the concept of the imperial presidency comes at the worst moment in history. Congress, a bloodless and dysfunctional body, will be unable to oppose a valid counterweight to the temptation of excess that will come with this immunity. The American people, this quilt of division and polarization, therefore hold the future of American democracy in their hands.
Judging by Trump’s overall surge in voting intentions and his revolting ascendancy over the Republican base, it’s fair to say that the people have lost their capacity for outrage, not to mention their ethical compass. To top it all off, Donald Trump is counting on an irreplaceable ally in his fading adversary, Joe Biden. The Democratic president would do well to think about his place in history before it’s too late.