On July 1, 2024, the U.S. Supreme Court declared that the U.S. president is above the law.
In Trump v. United States, the Supreme Court was presented with the specifics of the case against former President Donald Trump for his alleged attempts to overturn the results of the 2020 presidential election and inciting an insurrection on the U.S. Capitol on January 6, 2020. Rather than use this opportunity to affirm the nation’s founding principle that a president is not a king and that no one is above the law, the far right-wing supermajority of the court rejected that foundational idea. Instead, the court radically expanded the powers of U.S. presidents—allowing them to use “official acts” to shield illegal actions from prosecution—and laid the foundation for authoritarianism in America.
The majority of the court in Trump v. United States granted all presidents absolute immunity from criminal prosecution for official acts that are “core” to the presidency, which the justices broadly defined as powers not generally shared with Congress, such as issuing pardons; appointing and removing executive officials; or issuing vetoes. The court also ruled that the president is entitled to a presumption of immunity for other official acts and a prosecutor may only overcome that presumption by showing that the “criminal prohibition of the act would pose no dangers of intrusion on the authority and function of the executive branch.” In plain English, that is a very high bar for a prosecutor to clear, allowing a president to also commit crimes in the name of his broad role as commander in chief and his oath to “take care” to faithfully execute the laws.
So, what types of crimes can a sitting president of the United States now commit with impunity?
The Supreme Court has created a permission structure to morph the presidency—with its constitutional checks and balances—into a dictatorship allowing crimes to be committed with impunity in the name of his official duties as the executive. Based on the majority opinion, a president would have absolute immunity to sell pardons; accept bribes in exchange for vetoing a piece of legislation; poison their own attorney general; obstruct the Department of Justice (DOJ) from carrying out investigations of allies; or direct the DOJ to go after political opponents. The president also, at least, has the presumption of immunity—if not absolute immunity—for all other official actions as commander in chief, such as assassinating political rivals and deploying a military coup to stay in power. That all might sound like the province of a dictatorship, but it is now the American reality.
The following are examples of presidential actions that plausibly could be covered by immunity under the far right-wing decision in Trump v. United States:
- The president could sell pardons. The majority in Trump v. United States granted the president absolute immunity from criminal prosecution for his or her exercise of “core constitutional powers.” One of these powers explicitly granted under Article II of the Constitution is “to grant reprieves and pardons for offences against the United States.” In the 1886 case Ex parte Garland, the Supreme Court held that the president’s pardon power was unlimited (as relating to federal crimes) except in cases of impeachment, extended to every criminal offense, and could be exercised at any time—before or during legal proceedings or after conviction. Given the “core” nature of this power, the president would be absolutely immune from prosecution for crimes committed in the issuing of pardons, such as ordering federal employees to commit crimes on his behalf with the promise of pardons either before or after the crime occurred. As Justice Sonia Sotomayor decries in her dissent, according to this opinion, should the president “[take] a bribe in exchange for a pardon? Immune. Immune, immune, immune.”
- The president could accept bribes in exchange for issuing a veto. Similarly, it is the president’s sole power to issue a veto of congressional legislation, as mandated by Article II of the Constitution. Therefore, according to the majority opinion, he or she would have absolute immunity from prosecution for crimes committed while issuing a veto. This would undoubtedly encompass bribery or other forms of illegal activity in exchange for the president vetoing a piece of legislation passed by the elected representatives of the American people.
- The president could have members of his cabinet murdered. Another “core” presidential power, as emphasized by the majority, is the “unrestricted power of removal” the president has when it comes to executive officers. As Justice Ketanji Brown Jackson emphasizes in her dissent, while it might be clear the president has the authority to remove an executive officer, like the attorney general, the question at the core of this case is “whether the president has the option to remove the Attorney General by, say, poisoning him to death.” A logical reading of the majority opinion indicates that the answer is yes. The president can commit any crime in the process of removing an executive official without fear of criminal prosecution.
- The president can use the official Department of Justice for their own political aims. The majority opinion in Trump v. United States goes out of its way to eliminate the historically recognized independence of the DOJ, explicitly establishing that the relationship between the president and the DOJ is covered under absolute immunity. The court emphasizes the “exclusive authority and absolute discretion” of the president to “decide which crimes to investigate and prosecute.” In this specific case, the court validates former President Trump’s actions to direct the Justice Department to investigate claims of election interference in the 2020 election, declaring he is “absolutely immune” for his discussions with DOJ officials. Notably, the court even went as far to argue that courts may not “inquire into the President’s motives” when determining whether an actions taken by the President was “official” or “unofficial.” In other words, if the president deploys the Department of Justice to investigate, surveil, or detain his or her political opponents, for the sole “unofficial” purpose of increasing the president’s election prospects, the president is still absolutely immune. As Justice Sotomayor warns in her dissent, “Under that view of core powers, even fabricating evidence and insisting the Department use it in a criminal case could be covered.” The majority, she argues “shields large swaths of conduct involving the Justice Department with immunity.” Under this ruling, President Richard Nixon’s criminal activity surrounding the Watergate scandal—including his use of official power to obstruct the FBI’s investigation of the burglary at the Democratic National Committee offices for which he received a pardon—would likely receive absolute immunity.
- The president could utilize military and national security powers for his own benefit. The president enjoys, as part of his “core” constitutional authority, massive national security powers. Scholars and the courts have interpreted the “take care that the laws be faithfully executed” clause, the president’s oath to “preserve, protect and defend the Constitution of the United States,” and the president’s role as commander in chief as providing a wide breadth of power when it comes to national security. Should the president, in his official capacity, deploy the military and intelligence community in a variety of illegal ways—well beyond deploying the military to put down First Amendment protected protests and law enforcement purposes—to stay in power, he would likely be immune from criminal prosecution, according to the majority opinion. This could include utilizing federal law enforcement and the intelligence community to illegally surveil and harass political opponents or directing the military or federal law enforcement to detain political opponents on the justification that they are a national security risk to his administration or agenda. Justice Sotomayor argues that the “expansive view” of core power when it comes to operating as the commander in chief, that “will effectively insulate all sorts of noncore conduct from criminal prosecution.” Given the actions and words of past presidents, ranging from illegally sending Japanese Americans to internment camps, engaging in a conspiracy to obstruct justice, directing the FBI to serve their personal needs, or allegedly directing supporters to overturn a validly conducted election, this invocation of breadth of powers when it comes to military authority is particularly concerning.
- The president could assassinate his or her political opponents. According to the standard set forth in the majority opinion, a president could assassinate or commit other crimes against his political opponents in multiple instances without facing criminal prosecution—an audacious consequence the attorney to former President Trump actually conceded in the case. First, a president could use the military, in his or her sole role as the “commander in chief,” to assassinate a political rival who intends, for example, to pass legislation the president opposes. As Justice Sotomayor opines, should the president “[order] the Navy’s Seal Team 6 to assassinate a political rival? [The president would be] [i]mmune.” Another example offered by the dissent suggests that say a president states in an official speech that he “intends to stop a political rival from passing legislation he opposes, no matter what it takes to do so,” is likely be an official act as president. If the president, or one of his close allies, then hired a private assassin to murder that political rival—undoubtedly an unofficial act—the prosecution could not take a president’s public admission of premediated intent to prove motive for the murder. Given Trump’s vows of “revenge” against political adversaries once he is back in office, this expansive interpretation of immunity is an imminent threat to the functioning of the republic.
This list is nonexhaustive and focuses on those examples raised by the justices themselves. There are likely countless additional examples of crimes the president could commit in his or her official capacity whereby the executive would be presumptively immune. For example:
- A president could misuse the DOJ or other government entities to interfere in national elections and effectively override the will of voters.
- The president could violate laws against nepotism or illegal conflicts of interest to his or her benefit.
- The military could be deployed to silence lawful, constitutionally protected protests in major cities.
- The president could order that federal monies can be allocated to governors and states loyal to his political agenda as political favors. Similarly, the president could withhold federal funds already approved by Congress to international allies.
- The president could order government whistleblowers be punished and direct all executive branch employees to refuse to honor any subpoenas issued by Congress or federal prosecutors.
- The president could order the Internal Revenue Service to audit political opponents and pursue them in court.
This drastic, radical shift in power to the executive is dangerous for the functioning of American democracy under any president. In response to the extreme decision, President Joe Biden took the unprecedented step of calling for a constitutional amendment that would prohibit the blanket immunity the Supreme Court granted presidents. This case also demonstrates the dire need for significant Supreme Court reform, including new 18-year term limits and a binding code of ethics as well as potentially limiting the appellate jurisdiction of the court in some cases.