It’s been a tough week to divert one’s eyes from the spectacle of President Biden’s epic meltdown, physically and politically.
But the week brought a second disaster that demands attention. The Supreme Court just ruled that American presidents have the right to break the law as they perform their duties. And we can’t change that ruling in November. Whoever wins, our wounded democracy will never quite be the same.
“This is calamitous,” says Ross Baker, professor emeritus at Rutgers University. “If this decision had been handed down with Ronald Reagan as president, people wouldn’t have to have such apprehension. But it coincides with Biden’s decline, and the greater possibility that Donald Trump will be elected…He will use these powers to the maximum. He’ll see it as a warrant to move against his enemies, real or fancied.”
Chris Christie might consider shopping for a new home in Toronto. Because Chief Justice John Roberts, in his majority opinion, singled out a president’s right to control his own Department of Justice, to use it in any way he sees fit, criminal or not. Trump could order the FBI to conduct an illegal search of Christie’s home, say, and order prosecutors to manufacture bogus evidence — and Trump could never be prosecuted for those crimes.
“It’s hard to see how conferring absolute and presumptive immunity accomplishes anything but freeing the executive branch to devour everything and everyone else, especially opponents or critics of the administration,” says John Farmer Jr., the attorney general under Gov. Christie Whitman, and former dean of Rutgers Law School.
Scholars are poring over the 119-page decision, and they differ on the magnitude of this change. Roberts pushed back on the charge that this puts the president “above the law” since private acts can still be prosecuted as crimes. A president still can’t cheat on his taxes or beat his wife.
The decision, though, grants “absolute” immunity for crimes presidents may commit while exercising their “core constitutional powers,” like issuing a pardon, vetoing legislation, acting as commander in chief, or managing the Department of Justice. It grants “presumptive” immunity over all “official acts,” which are more vaguely defined. The lines won’t be clear until these rules are tested in court cases.
But the three liberal justices who dissented make a compelling case that the majority has created a monster that could devour our democracy. Even the “presumptive immunity” amounts to absolute immunity in practice, they wrote, because Roberts sets conditions that make it impossible to overcome that presumption.
“When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution,” Justice Sonia Sotomayor wrote. “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.”
Sotomayor’s fury is hard to miss. She signed off with “I dissent,” dispensing with the customary, “I respectfully dissent.”
Roberts dismissed her warnings as “fearmongering.” But he doesn’t dispute that this decision gives presidents broad new freedom to break the law without fear of consequence. That’s the whole point. He worries that presidents can’t do their jobs with the vigor envisioned by the Founders if they fear criminal prosecution after leaving office. Only immunity can “enable the President to carry out his constitutional duties without undue caution.”
Pause here for a reality check. Have American presidents been “unduly cautious” for the last few centuries, when they lacked this immunity? Did the threat of criminal prosecution stop George W. Bush from invading Iraq? Did it stop Barack Obama from ordering the assassination of Osama bin Laden? Did it tie Ronald Reagan’s hands when he confronted the Soviet Union? Did it stop Richard Nixon from bombing Cambodia?
Where does Roberts get this notion that American presidents are so enfeebled that we must now free them to break the law? What about the obvious dangers that presents?
“This immunity now lies about like a loaded weapon for any president that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the nation,” Sotomayor wrote.
Sound like anyone you know?
The decision was a big win for Trump, who sought this immunity to escape charges over his attempts to remain in power after losing the 2020 election. That case is now hopelessly delayed until after the election, and is fatally weakened in any case.
The ruling demolishes two centuries of American law and practice, dating back to Alexander Hamilton’s time. He said that presidents are subject to criminal prosecution and wrote that it was a key distinction between presidents and kings. Richard Nixon thought so too, when he accepted a pardon over his Watergate crimes, and so did Gerald Ford when he gave it. (John Dean said last week that this ruling would have given Nixon a free pass for those crimes in the first place.)
Even Sen. Mitch McConnell, the Republican leader, agreed. When he punked out of voting to convict Trump for trying to block the peaceful transfer of power, McConnell said that Trump would still be subject to criminal law. Every schoolkid is taught that in America, no one is above the law.
Until now. Just as Trump knocks on the door, this Supreme Court has handed him a get-out-of-jail free card. He can now use his official powers in a criminal fashion, with the Court’s blessing. May God save America. And may voters beware, come November.
More: Tom Moran columns
Tom Moran may be reached at tmoran@starledger.com or (973) 986-6951. Follow him on Twitter @tomamoran. Find NJ.com Opinion on Facebook.
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