Supreme Court ruling on immunity could embolden Trump

In her dissent from a Supreme Court ruling that granted former President Donald Trump broad immunity, Justice Sonia Sotomayor considered the potential consequences of the downfall: A president could take a bribe for a pardon, stage a military coup to retain power, order the assassination of a rival by Navy SEAL Team Six — and be shielded from prosecution for all of it.

The scenarios may sound like parts of an apocalyptic future. But the simple reality of the 6-3 ruling is that it gives presidents broad leeway to carry out official acts without fear of criminal prosecution and could embolden Trump, who has been impeached twice and faced four separate prosecutions in the past year and a half, as he eyes a return to the White House.

The outcome is significant because Trump, the presumptive Republican nominee, has openly signaled that he intends to pursue the same abusive behavior that marked his four years in office, which led to criminal and congressional investigations and thorny questions about the scope of presidential immunity. Those questions were answered largely in his favor in Monday’s groundbreaking op-ed.

“In the long run, I think it will broaden what presidents are willing to do, because they will see that there is a gray area that the Supreme Court has established,” said Princeton University professor Julian Zelizer, who studies political history. The effect of the opinion, he said, will be to “broaden the scope of what is permissible” and give presidents ample cover for actions that could veer into criminality.

Chief Justice John Roberts’ opinion did not dismiss the case accusing Trump of plotting to overturn the 2020 presidential election, as Trump had sought, leaving intact the long-established principle that there is no immunity for purely personal acts. However, it narrowed the case significantly by finding that presidents enjoy absolute immunity for their core constitutional duties and are entitled to a presumption of immunity for other official acts.

“This is a complete endorsement of the unitary executive theory,” said Michael Dorf, a law professor at Cornell University, referring to the theory that the U.S. Constitution grants the president extraordinary power.

From a practical perspective, the court’s ruling means that trial judge Tanya Chutkan must now conduct a further analysis of the facts to determine to what extent the conduct alleged in special counsel Jack Smith’s complaint can remain part of the case.

Importantly for Trump, the one area where the conservative majority said prosecutors were clearly off-limits was his command of the Justice Department. That includes his directives to the department’s leadership after the 2020 election to conduct what prosecutors called “sham” investigations into false claims of election fraud, as well as his efforts to use the department’s authority to advance his fruitless efforts to remain in power.

While the opinion does not create new law governing the interaction between the White House and the Justice Department, Roberts affirmed that a president has “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials” and may also “discuss potential investigations and prosecutions with his attorney general and other Justice Department officials in order to carry out his constitutional duty to ‘take care that the laws be faithfully executed.’”

“I think this is a norm-breaking opinion, and I can see Trump using this as a basis for a complete destruction of the independence of the Justice Department,” said Boston College law professor Kent Greenfield.

The position by the land’s highest court is good news for Trump, especially since he and his allies have signaled they want to use the powers of the presidency — presumably including the Justice Department’s investigative powers — to retaliate against political enemies.

After his conviction in May in his hush-money case in New York, Trump suggested he might retaliate against Hillary Clinton, his 2016 opponent, if he returns to the White House.

“Wouldn’t it be terrible to throw the president’s wife and the former secretary of state, think of it, the former secretary of state, but the president’s wife, in jail? Wouldn’t that be terrible? But they want to do it,” Trump said in an interview on Newsmax. “It’s a terrible, terrible path that they’re taking us down. And it’s entirely possible that it’s going to have to happen to them.”

He recently reposted a meme suggesting that former Congresswoman Liz Cheney, who as the No. 3 Republican in the House of Representatives broke ties with her party and voted to impeach Trump over the January 6, 2021, riot at the U.S. Capitol, had committed treason and should be tried by a military tribunal.

The posts and responses raise concerns as Trump’s interactions with the FBI and Justice Department as president eroded established norms and became a focus of special counsel Robert Mueller’s investigation into whether he obstructed an investigation into possible Russian coordination with his 2016 presidential campaign.

Trump urged his FBI director, James Comey, to investigate a close ally and fired him weeks later. He also criticized his hand-picked attorney general, Jeff Sessions, for recusing himself from the Russia investigation and called for Mueller’s resignation.

In his report, Mueller did not conclude whether Trump had unlawfully obstructed the investigation, in part because of a Justice Department legal opinion that says sitting presidents cannot be indicted. But he did say that presidents were not “categorically and permanently” immune from obstructing justice through the exercise of their presidential power.

There are, of course, still safeguards that can prevent most presidents from testing the limits of criminal immunity.

The threat of impeachment by Congress remains: Trump was impeached over a Jan. 6 phone call with Ukraine’s leader, only to be acquitted by the Senate. So too are the practices, protocols and norms that govern Washington’s bureaucracy.

Roberts, in his majority opinion, tried to downplay the impact, saying Sotomayor “struck a tone of chilling ominousness that is completely out of proportion to what the Court is actually doing today.”

But even if the scope of presidential power is not directly expanded by opinion, there is no question that it can benefit a president determined to abuse that power.

“Not every president is going to use it, but the lesson of Donald Trump, I think, is that one might,” Zelizer said. “Or the lesson of Richard Nixon is: one might. And the ‘one mights’ are the lessons you’re looking for.”