Washington, DC – The Supreme Court’s ruling on the scope of presidential immunity will “transform” the United States government, experts say, warning that the decision may undermine the rule of law in the country.
On Monday, the US top court weighed the broad claims former President Donald Trump made that his actions, while in office, were immune from prosecution. He currently faces criminal charges over his conduct during the final days of his presidency, when he was accused of attempting to overturn the 2020 elections.
The court gave Trump a partial victory, ruling that former US presidents cannot be prosecuted for official actions taken while in office. “He is entitled to at least presumptive immunity,” the court majority wrote.
Monday’s ruling will likely delay two of Trump’s criminal cases beyond the presidential elections in November, as a lower court will first need to hear arguments over what constitutes an official action.
But beyond its immediate effect, the decision will have a “remarkable” impact on presidential powers, said David Super, a law professor at Georgetown University.
“This fundamentally transforms the presidency,” Super told Al Jazeera. “Here, the court says the president is still subject to the law, but they’ve made that much, much narrower than it ever was before. These are certainly the kinds of powers that are much more familiar to dictators than they are to presidents of democratic countries.”
The Supreme Court’s six conservative justices approved the ruling on Monday, while their three liberal counterparts opposed it.
The ruling
The majority argued that, unless official actions were shielded from legal repercussions, a president could face retribution from political opponents upon leaving office.
But in the majority opinion, Chief Justice John Roberts explained that there are limits to presidential immunity.
“The President enjoys no immunity for his unofficial acts, and not everything the President does is official,” Roberts wrote.
“The President is not above the law. But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution.”
Presidents can still be prosecuted for robbing a liquor store, as Super put it, but not for any decision taken within their powers under the Constitution.
In fact, in its decision on Monday, the Supreme Court gave specific examples of where Trump’s behaviour in the election subversion case constituted official actions.
For example, the court ruled that conversations between Trump and Justice Department officials are “absolutely immune” from prosecution.
Federal prosecutors had argued that Trump tried to improperly influence the Justice Department to reverse his 2020 loss to Democratic President Joe Biden. Trump, the prosecutors said, also used “the power and authority of the Justice Department to conduct sham election crime investigations”.
But by deeming Trump’s conversations with agency officials to be “official actions”, experts fear the Supreme Court may have endangered the independence of the Justice Department.
While the president appoints the attorney general, prosecutors are expected to operate without political interference and apply the law equally, in accordance with longstanding norms.
‘Assassinate a political rival? Immune’
While a lower court will decide how Monday’s ruling affects Trump’s criminal case, Claire Finkelstein, a professor of law and philosophy at the University of Pennsylvania, said the “real import” of the decision is that it may allow future presidents to act with impunity.
“The long-term significance of this ruling should not be underestimated,” Finkelstein told Al Jazeera in a TV interview.
“What it says is that, if Donald Trump becomes president again, he can use his official capacity — in particular his core constitutional functions — to subvert the law, to shield himself from criminal liability, to distort justice in ways that favour himself.”
Matt Dallek, a political historian and professor at George Washington University, also said the court’s decision is “appalling”.
“The ruling is an assault on the constitutional limits to guard against abuses of power,” he told Al Jazeera.
In her dissent, liberal Justice Sonia Sotomayor forcefully rejected the ruling as well.
“The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution,” she wrote. “Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune.”
Super, the law professor, said Sotomayor’s assertion is not hyperbolic. The president is the commander-in-chief of the military.
“There’s no other official that can overrule the president in the command of the military. And so his giving the military an order would be absolutely immunised by this decision,” he told Al Jazeera.
Before Trump, no former US president had ever been indicted. The former president is facing four sets of criminal charges, including two related to election subversion.
Earlier this year, he was convicted in New York on charges of falsifying business documents to cover up hush-money payments made to a porn star ahead of the 2016 presidential election.
Trump has denied wrongdoing in all cases, describing the charges against him as a “witch-hunt” driven by political rivals — chiefly Biden. He is running against Biden in the 2024 presidential race.
‘Radical’
Trump, however, is not the first president to test the limits of presidential immunity. Richard Nixon could have faced charges over the Watergate scandal — when he used government resources to spy on political rivals — but he was pardoned by his successor, Gerald Ford, in 1974.
In response to another case against Nixon, the Supreme Court found that presidents were immune from civil damages as well.
Several officials in the Ronald Reagan administration were also indicted in the Iran-Contra affair, which saw the US illegally sell weapons to Iran to fund a rebel group in Nicaragua. But Reagan, who denied knowledge of the complex transactions, never faced charges.
More recently, Barack Obama’s administration refused to pursue legal charges against executive branch officials who authorised torture during the George W Bush presidency.
Chris Edelson — an assistant professor of government at the American University and author of Power Without Constraint: The Post 9/11 Presidency and National Security — said that, in modern history, US presidents have exercised power without “meaningful” restrictions.
“What’s different now is the court has now endorsed that, and we have a candidate for president who has made clear he will seek to rule as a dictator,” Edelson told Al Jazeera.
Trump said last year that he would be a dictator only on his first day in office, in order to “close the border”.
Edelson also called the court’s decision “radical”. He drew a comparison with Nixon’s time, when broad claims of presidential immunity drew outcry.
“When Richard Nixon famously said in a 1977 TV interview that, when the president does something, that means it’s not illegal, this was seen as a breathtaking statement,” he said.
“The court today has said that Nixon was actually right.”
Brian Osgood contributed to the reporting.
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