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I’m Jesse Wegman. I’m a member of “The Times” editorial board, where I write about law and politics.
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So on the last day of its term, the Court ruled — I think shocking many of us — that presidents are basically above the law, much to the shock of those of us who thought they weren’t. They have, essentially, absolute immunity for most of their official acts, regardless of how egregiously they violate the law in carrying them out. And they may even have immunity for some acts that are on the edge of officialness. So it’s a decision that flies in the face of more than 200 years of American history, the text of the Constitution, and, I think, everybody’s settled understanding of presidents’ liability for criminal activity.
In the immediate term, what this means is that Donald Trump will almost certainly not face prosecution for inciting a violent insurrection at the Capitol on January 6, 2021 to try to overturn an election that he had lost fair and square. I think the concern that the dissenters brought up was that this is not just Donald Trump but presidents going forward who will now feel, essentially, free to do whatever they want, knowing that it is going to be extraordinarily hard to hold them to account after their presidencies.
When this case first got to the court system, I think a lot of people laughed it off. It was Donald Trump bringing up yet another one of his off-the-wall, absurd legal arguments. In this case, he was saying everything that happened on January 6 and around January 6 I’m immune from prosecution for because I was the president, and I was doing my job as the president.
Just to be clear, there has never been any criminal immunity for any president in American history. This was, I thought, broadly understood. Everyone understood this. Richard Nixon understood it back in the Watergate era.
That’s why he accepted a pardon because he knew that, without the pardon, he could be criminally prosecuted. It’s why Donald Trump’s lawyers, during the second impeachment of Trump in early 2021, said, even if you vote to acquit him, don’t worry. You can still go after him in a court of law. That was the general understanding.
The court blew all of that up with its decision on Monday. And I don’t think we can overstate what a monumental, and monumentally awful, decision this was.
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Look, the justices in the majority, which was written by Chief Justice John Roberts, who styles himself as an institutionalist — and I would say this opinion is about as anti-institutional as you can get — they argued that to expose presidents to criminal prosecution would interfere with their ability to do their job with the kind of energy and boldness that we require of presidents.
This is just laughable. First of all, no president in history before Donald Trump was brought up on criminal charges. The reason for that isn’t that presidents were tiptoeing around, terrified about being brought up on criminal charges. The reason is that presidents understood their role, and they didn’t break the law the way that Donald Trump did.
For a court that loves to talk about the importance of the text of the Constitution and the history and the tradition of this country, this is about as untethered from any of those things as you could imagine. If you could characterize this court in any way, it is a court that is entirely outcome-driven.
It has no principles. It does not rule on the grounds of any principle other than what it wants to do in a given case. And what it wants to do in a given case is, suspiciously, often correlated quite closely with the interests of the conservative movement and the Republican Party.
Justice Sonia Sotomayor, who wrote one of the two dissents from Monday’s ruling, she called it “atextual, ahistorical, and utterly indefensible.” And Sotomayor says in her dissent, “The court effectively creates a law-free zone around the president, upsetting the status quo that has existed since the founding.”
That’s what’s so shocking about this decision, right? The American Revolution was fought specifically to get out from under the power of a king who was unaccountable, a king who literally existed above the law.
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The other way to think about the stakes of this ruling and of the impact it’s going to have is on Donald Trump himself. Look at what he did in his first term. Look at how much he disregarded the courts, Congress, all of the institutions of American government, when they didn’t go his way. He delegitimized them all.
So now think about Trump basically being unleashed by a Supreme Court that has said, it is going to be almost impossible to hold you criminally to account for anything that you’ve done. This is a man who does not see the law or the rule of law as something he respects or will follow. So now consider what it will be like if and when he retakes office and knows that nothing he does is going to come back to haunt him.
He will basically be immune in every sense for his actions. It is going to be very hard to say that almost anything a president does is not done in his official capacity. And I think, because of that, you’re going to see presidents feeling emboldened to take all kinds of steps that we didn’t think that they could ever take before.
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