SCOTUS Shields Trump & Empowers Path To An Authoritarian Presidency
The 6-3 right-wing immunity ruling marks a dangerous shift towards authoritarianism - protecting Trump, implementing Project 2025 goals, and green-lighting some of Trump’s dictatorial agenda.
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Today, the 6-3 right-wing majority Supreme Court placed the office of the presidency closer to a vessel of authoritarianism than it’s ever been in history.
Trump v. The United States showcases an increasingly radical Supreme Court taking Donald Trump’s expansive view of executive power and enshrining it into precedent. It throws out key parts of Special Counsel Jack Smith’s January 6 indictment and puts others into question. Overall, it places the president above their fellow citizens and, in many cases, shamelessly above the law.
Beyond Trump, this is a big win for the unitary executive theory that powers Project 2025 and a big loss for our democracy.
Between this immunity decision and the ruling that ends Chevron deference, which gutted the power of federal agencies, the Supreme Court has already implemented Project 2025 goals and signaled it will greenlight key components of Trump’s authoritarian second-term agenda under the unitary executive theory. Everything is on the line this election.
Let’s dive into the details.
In this 6-3 decision, Chief Justice John Roberts and his fellow right-wing justices came to three core determinations:
Presidents have absolute immunity for “official acts” related to the “exercise of his core constitutional powers.”
Presidents have “presumptive immunity” when it comes to other official acts outside of core constitutionally defined powers. The burden is on a prosecutor to prove presumptive immunity doesn’t apply to a given act.
Presidents have no immunity for “unofficial acts.” But official acts and unofficial acts are decided by a judge, and the decision would be appealable to the Supreme Court. In the case of the federal January 6 prosecution, Judge Tanya Chutkan can decide which acts are official and unofficial, but the Supreme Court can interfere if appealed.
So, in a nutshell, the Supreme Court has ruled that certain acts explicitly empowered by Article II of the Constitution are absolutely immune from criminal prosecution, and if a judge or the Supreme Court deems other forms of conduct to be official acts, then presidents can abuse their power without consequences.
Former President Richard Nixon once infamously said: “Well, when the president does it, that means that it is not illegal.” Donald Trump went further, saying: “Then I have an Article II, where I have the right to do whatever I want as president.” By creating this new standard of immunity, the Supreme Court just essentially agreed.
While the US Court of Appeals for the DC Circuit referred to the former president as “Citizen Trump” in their ruling rejecting absolute immunity, this 6-3 Supreme Court majority sees him more as “King Trump,” according to the liberal justices’ powerful dissent.
In a must-read piece of historical writing, Supreme Court Justice Sonia Sotomayor penned a hard-hitting dissent that put the extremism of the majority into stark terms. Here’s a bit from her opening and closing remarks:
“Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law…
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….
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…
Justice Sotomayor and her liberal colleagues are rightfully alarmed. This new view of presidential power is downright dictatorial.
When it comes to acts the Supreme Court deems covered by absolute immunity, their definition of “official acts” is broad. Chief Justice Roberts writes:
“We thus conclude that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.”
When speaking directly to allegations in the indictment, Chief Justice Roberts narrowed Special Counsel Jack Smith’s case by unmistakably deeming Trump’s interactions with the Justice Department as official acts that warrant absolute immunity. This is a truly stunning excerpt from the ruling that essentially ends any semblance of an independent DOJ:
“Trump and his co-conspirators allegedly attempted to leverage the Justice Department’s power and authority to convince certain States to replace their legitimate electors with Trump’s fraudulent slates of electors… The President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to ‘take Care that the Laws be faithfully executed.’… Trump’s threatened removal of the Acting Attorney General likewise implicates “conclusive and preclusive” Presidential authority… Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.”
So, the entire portion of Jack Smith’s indictment related to Trump’s efforts to pressure the DOJ to participate in his plot to overturn the 2020 election is now void - unilaterally thrown out by the Supreme Court. And if Donald Trump seeks to prosecute his political opponents, as he promises, this is totally fine under this reasoning.
When it comes to this new standard of “presumptive immunity” for acts alleged to be official, the Supreme Court places the burden on prosecutors to disprove the presumption of immunity. But, the ruling also says that courts can’t inquire into the motives of the president or use evidence derived from official acts to bolster their case when prosecuting unofficial acts. From the ruling:
“In dividing official from unofficial conduct, courts may not inquire into the President’s motives… Use of evidence about such conduct, even when an indictment alleges only unofficial conduct, would thereby heighten the prospect that the President’s official decisionmaking will be distorted.”
Not being able to analyze intent or present evidence related to official acts makes it incredibly difficult to prosecute a case against a president. The intent of a defendant is key to criminal prosecutions. Justice Sotomayor hits back at this in her dissent:
“…The majority declares that evidence concerning acts for which the President is immune can play no role in any criminal prosecution against him. That holding, which will prevent the Government from using a President’s official acts to prove knowledge or intent in prosecuting private offenses, is nonsensical.”
While the Supreme Court ruled Trump’s DOJ interactions are absolutely immune, other parts of Special Counsel Jack Smith’s indictment contain both acts that are covered by presumptive immunity and others that are unofficial acts.
Chief Justice Roberts specifically suggested the pressure campaign targeting Vice President Mike Pence is likely covered by presumptive immunity, but it’s up to Judge Chutkan to decide if presumptive immunity applies:
“It is ultimately the Government’s burden to rebut the presumption of immunity. We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.”
When it comes to the fake elector plot, the pressuring of state lawmakers, and the alleged incitement of the insurrection itself, the Supreme Court also remanded that back to the District Court and Judge Chutkan to decide if they are official acts or private unofficial acts.
Regardless of what happens next, the chances of the federal January 6 case going to trial before the election are incredibly slim, no matter how fast Judge Chutkan moves to decide which acts are official and unofficial.
What the Supreme Court just did is move America closer toward an imperial presidency where the President, and more specifically, Donald Trump, can abuse his power with impunity.
Trump’s second-term plans are emboldened by the Supreme Court’s recent moves. Trump and his Project 2025 allies’ plans to dismantle agencies and weaken their ability to regulate the environment and businesses were just given a massive boost by the Supreme Court’s overturning of the longstanding Chevron Deference
Now, not only has Trump been partially protected from prosecution for some of his crimes in the plot to overturn the 2020 election. He’s also been fortified to pursue some of his most depraved objectives in a second term.
The Supreme Court has just indicated they likely will not block any of Trump’s unilateral efforts to bring independent agencies under direct White House control, moves to prosecute his political opponents, or his planned abuse of the military to target protestors and deport millions.
With the Supreme Court’s immunity decision, the stakes of this election have just gotten even higher.
I’ll leave you with the final paragraph of Justice Sonia Sotomayor’s powerful dissent. I hope voters heed her warning.
“Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop.
With fear for our democracy, I dissent.”
A very good summation, Ahmed. The stakes have definitely risen exponentially. But if this takes effect immediately, perhaps our current president could use some of this power to postpone the upcoming election—for the good of the country?