Court Pivots Nation Towards Autocracy

Three months ago, on July 1, The U.S. Supreme Court ruled that presidents have an “absolute immunity” against criminal prosecution for “official acts” that are within the authority of the executive branch. 

The issue arose in former President Donald Trump’s appeal of federal prosecution of charges that he actively attempted to overturn results of the 2020 presidential election, while still in office, 

In response to the 6-3 majority decision of the Court, Justice Sonia Sotamayor wrote a scathing dissenting opinion, saying that majority’s ruling “invents an atextual, ahistorical, and unjustifiable immunity that puts the president above the law.” 

The Supreme Court made a distinction between “official” and “unofficial” acts, which Justice Ketanji Brown Jackson described as “both arbitrary and irrational.” In effect, the decision gave a president criminal immunity for any acts that they could describe as being done in their capacity as the president, and not in a personal capacity. 

Chief Justice John Roberts, who wrote the majority opinion, argued that absolute immunity for such official acts is necessary to protect the “functioning” and “independence” of the executive branch. He hypothesized that without such immunity, “prosecutions of ex-presidents could quickly become routine.” 

In its written ruling, the majority also barred courts from attempting to ask about the intentions of the president when deciding if an act was “official” or “unofficial,” or even if the actions were legal, writing that “otherwise, Presidents would be subject to trial on ‘every allegation that an action was unlawful,’ depriving immunity of the intended effect.” 

Among the legal precedents cited to determine that this “absolute immunity” existed were two cases against former presidents, Richard Nixon (Nixon v. Fitzgerald, 1982) and Harry Truman (Youngstown Sheet & Tube Co. v. Sawyer, 1952) 

In the Fitzgerald case, the Supreme Court ruled that presidents had “absolute immunity” against civil damages, which the Roberts Court expanded to include criminal liability, for “official acts” – which conflicts with the emphasis in the Fitzgerald decision that there is a public interest in public officials being held accountable. 

In the latter case, the Court ruled that President Truman had exceeded his authority when he had the federal government seize control of a large number of steel mills to thwart a planned union labor strike. 

The current Supreme Court majority found in its motion that presidents should have “at least presumptive immunity” while using official powers under their “conclusive and preclusive” authority. Which is the exact thing that Justice Robert Jackson warned about in the 1952 decision, namely that when a president makes claims “to a power at once so conclusive and preclusive” that it “must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.” 

A result of this most recent ruling is that, as Sotoyamor describes, “a president’s use of any official power for any purpose, even the most corrupt, is immune from prosecution.” 

Sotoyamor argues in her dissent that it is quite clear that the U.S. Constitution’s impeachment clause is in direct opposition to the decision of the Court to invent criminal immunity for presidents. The impeachment clause says that officials who are impeached “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” 

In these ways, the Supreme Court’s July decision has prioritized the “functioning” and “authority” of the presidency over the interest of the public to hold officials accountable. 

The case that led to this regrettable decision was United States v Trump, where federal prosecutor Jack Smith was tasked with proving in court that Trump committed crimes while trying to prevent Joe Biden’s certification as the incoming president following the 2020 election. During that attempt, he tried to influence election officials and attempted to get the federal Department of Justice to publicly undermine the validity of the 2020 election. 

Also, President Trump was recorded on a phone call asking the Georgia Secretary of State to find just enough votes to change the outcome of that state’s presidential vote. 

When asked at the time how he thought the transition to the new Biden administration would go, Trump said, “there won’t be a transfer, frankly. There’ll be a continuation.” 

I can’t think of a better way to describe how an autocracy would begin. 

Under the new Court decision, neither Trump nor any other presidents could be held accountable for abuses of power, so long as it’s arguable that they had the authority to act as they did. 

Already, for quite a while, the U.S. had been expanding what powers presidents have as Congress cedes control, to allow presidents to conduct military actions without formal declarations of war and other broad emergency powers. This expansion was preceded by the Insurrection Act, which could allow a president to use military forces against anything they consider a “rebellion” or persons who “obstruct the execution of laws” (whatever that means) as a justification to enact a transition to autocracy. 

Because of these changes, the U.S. is getting closer to such a future. Trump may only be the first of many presidents who attempt this. The current contest of ballots (and wills) isn’t about a single election; it’s about whether we want to even keep having elections.