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It seems fitting that the Supreme Courts decision granting presidents read: Donald Trump robust immunity from criminal prosecution landed less than a day after Trump shared a social media meme suggesting that his critics should stand before a military tribunal on charges of treason. If Trump is reelected in November, the courts decision Monday would suggest that he would have enormous leeway in exacting revenge against those he dislikes without fear of criminal prosecution.

This isnt theoretical; in writing the majority opinion, Chief Justice John G. Roberts Jr. offered this idea explicitly. It is one reason observers of threats to democracy saw a result like that in Trump v. U.S. as so dangerous. Yet in his opinion, Roberts gets that threat backward.

The President is not above the law, the opinion states. But and its a very big but under our system of separated powers, the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts.

Roberts dismisses criticisms offered in the dissents written by Justices Sonia Sotomayor and Ketanji Brown Jackson. The dissents, he writes, strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today.

Whats more, he argues at a later point, Sotomayor and Jackson offer no constitutional basis for rejecting the idea that a president should have such immunity.

Conspicuously absent is mention of the fact that since the founding, no President has ever faced criminal charges let alone for his conduct in office, he notes. And accordingly no court has ever been faced with the question of a Presidents immunity from prosecution. He offers a slippery slope: Without immunity, such types of prosecutions i.e., centrally political ones of ex-Presidents could quickly become routine. The result would be an enfeebling of the Presidency and our Government.

These are hard to reconcile: If this hasnt happened before, why would they happen routinely in the future? Solely because Trump pressed the issue, seeking protection against prosecutions rooted in his efforts to retain power after losing in 2020? In essence, the majority opinion accepts an argument that the exceptional occurrence here was the prosecution of Trump, not Trumps actions that led to the prosecution.

This was a distinction elevated by special counsel Jack Smith in an April filing with the court.

This prosecution is a historical first not because of any assumption about immunity but instead because of the singular gravity of the alleged conduct, he wrote. Trump did something that no other president had done, crossing an uncrossed line, and criminal prosecution was a result.

The risk the Supreme Court majority identifies and seeks to address is that others might be prosecuted, not that others or reelected presidents might feel confident in ignoring the law. Instead of addressing whats happening, they excuse it by theorizing about what might.

Roberts offers a president targeting his opponents as an example of something thats protected: The President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to take Care that the Laws be faithfully executed. With that sentence, Roberts apparently intended to excise one of the charges that Trump faces in his D.C. indictment. Trump allies may read that line as a subtle excoriation of what they perceive President Biden to have done. But a Donald Trump who takes office on Jan. 20, 2025, will read it as carte blanche.

Sotomayors dissent is particularly sharp in criticizing the majority opinion, in keeping with her recent public comments about dire court opinions yet to come.

Todays decision to grant former Presidents criminal immunity reshapes the institution of the Presidency, her dissent begins. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.

She offers examples when contrary to Robertss suggestion that this situation is novel the question of presidential criminality has emerged previously. Past special counsels have considered whether criminal charges might be brought, for example. Richard M. Nixon accepted a pardon from President Gerald Ford that rested on the understanding that the former President faced potential criminal liability. The result after Watergate was not a cascade of partisan attempts at prosecution.

The majoritys main concern could be that Presidents will be deterred from taking necessary and lawful action by the fear that their successors might pin them with a baseless criminal prosecution a prosecution that would almost certainly be doomed to fail, if it even made it out of the starting gate, Sotomayor writes, having articulated (as she has in the past) the systems checks against unfair prosecution. The Court should not have so little faith in this Nations Presidents.

But Sotomayor clearly has her own concerns about future presidents, and her warnings to that end are repeatedly pointed. The decision now lies about like a loaded weapon for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation, she writes. At another point, she states that in every use of official power, the President is now a king above the law.

This is the outcome most concerning to political scientists and other experts when surveyed earlier this year. Presented with several ways the legal system might put the democratic system at risk, a finding of presidential immunity was the one that experts viewed as the most obvious and dangerous threat.

In the majority opinion, Roberts attempts to separate the decision from Trump. (Unlike the political branches and the public at large, he writes, we cannot afford to fixate exclusively, or even primarily, on present exigencies.) But the decision is inextricable from Trump, in the immediate sense that it all but ensures that Trump wont face prosecution for his efforts to overturn the 2020 election before Novembers election and in the sense that it offers Trump clear guidelines on the power he might assume should he win.

It is further a decision that comes in the moment that allowed Trump to attain power. One reason Watergate didnt trigger a partisan backlash was that partisanship was not as toxic and divided then as it is now. And, again, a reason that no president has previously been criminally charged with trying to retain power despite losing an election is that no president has previously engaged in such an effort to retain power despite losing an election.

In her dissent, Jackson notes the ways in which the majoritys decision will slot into the system as it exists.

A majority of this Court, applying an indeterminate test, will pick and choose which laws apply to which Presidents, she writes, by labeling his various allegedly criminal acts as core, official, or manifestly or palpably beyond the Presidents authority. Theres no standard offered in determining what constitutes an official act. It is like so many other things in this courts estimation something that will be decided by the courts and, ultimately, should they choose, by the Supreme Court.

A president who engages in even extreme actions in the guise of his official duties faces obvious sanction. If a president orders the Navys Seal Team 6 to assassinate a political rival, to use one of Sotomayors examples, he is immune from prosecution. He might be impeached, but as Trump showed more than once, removal from office is unlikely barring a dramatic shift in the composition of the Senate.

Roberts is right that the question was triggered now because of exceptional circumstances. He seems to be wrong about those circumstances. And those circumstances may arise again in about seven months.

Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law, Sotomayors opinion concludes. Moving forward, however, all former Presidents will be cloaked in such immunity.

With fear for our democracy, she writes, I dissent.

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Analysis | The Supreme Court gets the stakes of presidential immunity backward - The Washington Post

The Supreme Court ruled today in a 6 to 3 decision that Donald Trump is entitled to substantial immunity from prosecution, a significant expansion of presidential power. All three of the courts liberal justices dissented.

The decisions most immediate effect is that it all but ensures that the trial of Trump on charges of plotting to subvert the 2020 election will not be held before the November election. More broadly, todays ruling could become one of the most important decisions on the presidency in the history of the court.

Chief Justice John Roberts, who wrote for the majority, said that Trump and all presidents have immunity for their core constitutional actions, and presumptive immunity for all official acts. In the election subversion case against Trump, Roberts said that the trial judge must separate the former presidents official and unofficial conduct to see which charges should still stand.

The chief justice said that such broad immunity is necessary to protect an energetic, independent executive. The courts liberal wing offered some of the harshest dissents ever filed by justices. Justice Sonia Sotomayor, joined by Justices Ketanji Brown Jackson and Elena Kagan, wrote: The relationship between the president and the people he serves has shifted irrevocably. In every use of official power, the president is now a king above the law.

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The Supreme Court Granted Trump Substantial Immunity - The New York Times

It is well established that the road to power in the Republican Party runs past a toll booth named Donald Trump. Those seeking prominence and power have to offer the former president their fealty at a bare minimum; those seeking to travel further have to pay a higher cost.

North Dakota Gov. Doug Burgum (R) is happy to pony up. Burgum rose to attention a year ago when he announced his extremely long-shot bid for the Republican presidential nomination in 2024. (Hes rich, which always helps.) He fared poorly, but that was probably more a positive than a negative: He never had to hit Trump too hard but still came to Trumps attention. Now hes being discussed as a contender for his partys vice-presidential nomination.

That brought him to NBC Newss Meet the Press on Sunday, where with a ping of his political E-ZPass he offered a neat articulation of the Republican response to concerns that Trump seeks authoritarian power: No, Democrats do.

Host Kristen Welker asked whether Trumps comments during last weeks presidential debate didnt have the effect of undermining peoples faith in democracy itself by raising questions about the fairness of the 2020 election. It didnt, Burgum replied, because both parties have done this. His evidence that Democrats had done so was both familiar and thin: asking for a recount in 2000 or grumbling about the outcome in 2016.

As a country, if we want to move forward, Burgum said, we have to have elections that both parties agree to.

On paper, this seems noncontroversial. In context, though, its anything but. The entire point of Trumps efforts to subvert 2020 was that he established and encouraged Republicans to reject the results of the election. A compromise to which both parties agreed, then, necessarily meant one in which the reality of Trumps loss was somehow undermined. Setting that standard moving forward means that partisanship should set the boundaries of acceptability, not math. Thats precisely the sort of thing that is alarming to those concerned about Trumps approach to democracy.

Welker pushed back, as you might hope she would: Wasnt Trumps failure to concede alarming?

Burgum didnt think so, given that, Trump, at the end of this term on January 20th, left the White House. We had a smooth transition.

Welker offered Jan. 6 as a counterpoint to that argument.

Well, I think we have to say that there was a smooth transition, Burgum replied, which we certainly dont. A second later, he got to the central point.

Going into 2024, I think both parties are going to be very focused on [the election], he said. I think the threat to democracy, as a governor in North Dakota today, Ive been living under what I call the Biden dictatorship because of all the rules and regulations.

Welker noted that Biden had introduced fewer executive orders than both Trump and Burgum himself, asking whether that made Burgum dictator of North Dakota. Burgum claimed that he was simply trying to get rid of red tape and changed the subject.

Again, though, this is the rhetoric: Democrats are the real threat to democracy. Its not always articulated in the manner Burgum used, but its routine. Violence that followed some protests against police brutality in summer 2020 was worse than the Capitol riot. The arrest of those who participated in the riot was not a response to an effort to subvert democracy but itself such a subversion. It isnt what Trump does thats the problem; its Biden and the Democrats and being woke and labeling social media posts as false and changing the rules around elections and so on. The problem isnt us, and it isnt Donald Trump. The problem is them, and it is Dictator Biden.

That Democrats and Republicans point to the threat to democracy as a significant problem has been established in polling for some time now. Last month, a Fox News poll found that members of both major parties saw the threat to democracy as being a function of restricted freedom rather than impaired elections, for example.

Over the weekend, polling from CBS News, conducted by YouGov, showed how pervasive the sentiment is. Most Democrats said democracy would only be safe if Biden wins in November. Most Republicans said it would only be safe if Trump did.

The net effect is that Americans overall are divided. A majority think that democracy will not be protected if Biden wins, and a (mostly different) majority thinks it will not be protected if Trump does.

As Welker noted to Burgum, the presentation of Biden as a dictator because he implemented executive actions is flatly ridiculous. It became only more ridiculous after the Supreme Court on Monday determined that Trumps efforts to subvert the 2020 election had broad protections against criminal prosecution. Its not even clear the extent to which Burgum believes it.

But it is clear that this is the sort of thing Trump wants to hear from a possible running mate. It is also clear that a lot of Republicans believe it, that they see Biden as dictatorial centrally because he uses the power he was granted by the 2020 election to enact his agenda.

If you think that election was illegitimate because Trump convinced you that it was, its not hard to see how this perception of Biden follows.

Original post:
Analysis | The 'Biden dictatorship': How the right reframes the threat to democracy - The Washington Post

The Supreme Courts belated decision this week regarding presidential immunity is a defeat for presidential accountability, leaving Donald Trump, the only former president for whom the question of criminal immunity has been pushed this far, escaping legal consequences before the general election for his actions involving efforts to overturn the 2020 election.

The decision carves out absolute immunity for core presidential functions, including ominously questionable interactions with the Justice Department alleged to be illegal in the indictment from the special counsel Jack Smith. The court also creates a presumption of immunity for other official actions alleged in the Smith indictment.

By not deciding the case more than six months ago, when Mr. Smith first raised the issue to the court, it has also provided Mr. Trump de facto immunity. The court clearly believed that it had to weigh in on the scope of criminal immunity for a former president. But it could have weighed in then; the court has kept the criminal case on hold since December.

But all is not lost. A trial might not happen, but a legal proceeding that will give voters some of what they want and need could still take place.

A full trial before the general election in November is surely off the table, but Judge Tanya Chutkan of U.S. District Court in Washington is now authorized to hold, in short order, an evidentiary hearing, replete with important witness testimony. That hearing would not replace a full trial and verdict but at this point it is the best and last means to make public crucial evidence for voters to hear before Election Day.

With the stay lifted by the Supreme Court, Judge Chutkan can hold a prompt hearing on the key issues left open by the ruling: what allegations in the indictment are core official functions entitled to absolute immunity and which are not.

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Opinion | How to Get Voters the Facts They Need Without a Trump Jan. 6 Trial - The New York Times

Last month, YouGov conducted a poll for CBS News that included a question focused specifically on the Supreme Court case for which a decision came down Monday. Should American presidents, the pollsters asked, be granted broad immunity from criminal prosecution for actions they took in service of their presidencies?

Most Americans more than two-thirds, in fact said no. There were differences by political affiliation, with Democrats overwhelmingly rejecting the idea that a president should have such power. Among Republicans, a majority disagreed with offering that sort of protection, but only a relatively narrow one.

That's not entirely surprising, given the genesis for the question. Donald Trump, indicted on state and federal charges for attempting to overturn the results of the 2020 presidential election, had argued that he (and every president) had a tacit protection from prosecution for engaging in those actions. Republicans were more likely than Democrats to support this sort of immunity, we can assume, because some portion of them recognized that it was Trump that we were really talking about.

But we dont need to guess here. YouGov asked half of respondents specifically whether Trump should have that sort of immunity. Again, most respondents said he shouldnt. This time, though, most Republicans about two-thirds said he should.

On Monday, that Republican minority got its wish largely because of the systematic advantages Republicans have enjoyed in the Senate and thanks to the electoral college.

There are nine members of the court. The longest-serving member is Justice Clarence Thomas, nominated by George H.W. Bush and confirmed in 1991. The newest member is Justice Ketanji Brown Jackson, nominated by President Biden and confirmed in 2022.

But theres a difference between the confirmations of those two justices. Thomass deeply controversial nomination earned him 52 Senate votes. Jacksons far-less-controversial nomination landed in the modern era, when bipartisan approval of Supreme Court nominations has been abandoned. She got 53 votes.

Because of the way that power is allocated in the Senate, though, Jackson got support from senators representing far more of the country than Thomas did. Rural, lightly populated states get the same two senators that more-urban, densely populated ones do, meaning that to use the standard example Californias 39 million residents get the same number of senators as Wyomings 580,000.

If we allocate half of their state's population to each senator, Thomas got the support of senators representing just under half the population. Jackson got the support of senators representing 57 percent of the population.

Using that same calculus, three other sitting justices also got support from senators representing less than half of the country: Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett, all of whom were appointed by Trump.

Trump, of course, won the presidency thanks to another power structure that has often benefited Republicans: the electoral college. He lost the popular vote in 2016 but became president anyway, earning the right to fill a vacancy on the court immediately and then two more over the course of his presidency.

That he had the right to fill that vacancy immediately, of course, is itself a function of the imbalance of power in the Senate. Then-Senate Majority Leader Mitch McConnell (R-Ky.) rejected President Barack Obamas 2016 nominee, Merrick Garland, something he was able to do given the Republican majority in the chamber. That majority represented about 47 percent of the countrys population. (When another court vacancy emerged in 2020, McConnell used his partys majority to fill it immediately.)

Two other justices, Chief Justice John G. Roberts Jr. and Justice Samuel Alito, benefited from these advantages in another way. Alito was confirmed by senators representing barely more than half the countrys population, despite receiving 58 votes in the Senate. But he, like Roberts, was nominated by George W. Bush, who had been first elected in 2000 thanks to the electoral college. He was reelected in 2004 with a popular vote majority the first Republican to do so since his fathers election in 1988. But had the popular vote determined the winner in 2000, its not clear any Republican would have been elected four years later.

As defenders of Trump and the Supreme Court will immediately note: This is how the system works. And that is true. It is. Five members of the nine-person Supreme Court can be nominated by presidents who lost the popular vote when they first ran, and four of them can be confirmed by senators representing less than half the country. Then they can decide, against the views of two-thirds of the country, that a president who lost the popular vote should have immunity from criminal charges for having attempted to subvert the results after he lost the popular vote again.

Its how the system works.

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Analysis | The minoritarian power imbalance that gave Trump immunity - The Washington Post