At first glance, the Supreme Court’s July 1 decision on presidential immunity looked like an unwise overstatement of otherwise valid principles. At closer glance, it looks almost abominable.
If there is a future President Kamala Harris, the decision in Trump v. United States would make her frighteningly unpunishable in criminal court even for what otherwise would be massive illegalities. Fans of former President Donald Trump who are celebrating the decision could find themselves obliterated on their own petards.
The 5-3-1 decision by Chief Justice John Roberts, with Justice Amy Coney Barrett hesitatingly concurring in part and dissenting in part while the three Democratic appointees dissent entirely, is a departure from text, original public meaning and crucial historical referents. It lays out theories of presidential immunity that are defensible, but it pushes them so far as to be perilous. Its language repeatedly is expansive when it should be studiously circumspect.
Roberts asserts, perhaps justifiably, that there do exist some realms, “within his exclusive sphere of constitutional authority,” in which a president’s actions are “absolutely immune” from criminal prosecution. Indeed, although the word “absolute” is so all-encompassing as to be problematic, it would be hard to conceive of a situation in which a president’s use of diplomacy or military abroad could, under any cogent understanding of the Constitution, be subject to conviction in U.S. criminal courts.
Alas, the court majority goes much farther. They posit an “absolute” immunity for many actions on the domestic front as well, including any discussions or actions with regard to the Justice Department. They make no clear distinction, either, between absolute immunity for use of the military abroad compared to within U.S. borders.
Roberts also asserts that the president is “presumptive[ly]” even if not “absolutely” immune from any acts within even “the outer perimeter of his official responsibility.” He says that immunity applies unless prosecutors can prove that trying him “would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’”
Read that again. No danger at all. And “outer” limits. While Roberts pretends this narrowing of immunity from “absolute” to merely “presumptive” is an important distinction, in practice it is almost impossible to imagine any use of “official” powers that poses no danger even to the outer limits of a president’s authority.
Justice Sonia Sotomayor, in dissent, gives examples of what could happen if a president is presumptively out of prosecutorial reach to such a great extent: “[If he] organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune.”
Such immunity should be unthinkable. Roberts writes that such examples are mere “fear-mongering,” but noticeably does not even try to explain why his reasoning would avoid those very scenarios about which Sotomayor warns. Repeat: He just brushes it aside without actually addressing it, except to propose a countervailing hypothetical.
The difference is that the dissenters explained at substantial length both why there are constitutional safeguards against Roberts’ scenario and why his scenario is flawed in terms of logic, history and the near-constitutional explanations in the Federalist Papers. Roberts provided no such courtesy and no such explanatory marker for future courts to discern why a president would indeed be criminally prosecutable, under his decision, for such flagrant abuses of power.
Justice Barrett, in the middle, wrote the single most concisely cogent line of all: “Properly conceived, the president’s constitutional protection from prosecution is narrow.” And, in the part of her opinion that dissents from the main holding, she blasted Roberts’ truly bizarre, entirely untextual conclusion that even if a president is being tried for conduct outside the very “outer” bounds of presidential authority, prosecutors can’t even discuss conduct for which he is immune as part of the evidence in their case.
If the president is being charged with bribery, for example, then of course the jury should be told what “official act” it was for which the bribe was paid.
“To make sense of charges alleging a quid pro quo,” she wrote, “the jury must be allowed to hear about both the quid and the quo.” [Italics are Barrett’s.] Under Roberts’ astonishingly grandiose assertion of presidential immunity, a jury would be denied that basic information.
This isn’t a Constitution Roberts is expounding, but merely a theory. And it’s a theory that, by putting the president almost entirely above the law, is blindingly dangerous. The long view is needed: If conservatives aren’t careful, the danger one day will be turned against them.