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    The Guardian view on Trump and presidential immunity: the return of the king | Editorial

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    The supreme court’s ruling on presidential immunity combines a tectonic constitutional shift and immediate political repercussions to devastating effect. It allows one man to stand above the law. It slows and appears to gut the 2020 election-subversion case against Donald Trump, though it does not necessarily end it. No one believes a trial can be held before November’s election, although court hearings could still offer a detailed airing of the evidence this autumn.There could hardly have been a better week for Mr Trump, who saw his rival stumble so badly in last Thursday’s debate that Joe Biden faces growing calls to quit four months from election day. Anyone who doubts how consequential a second Trump administration term would be for the United States and the world need only look to the supreme court, now ruled by a conservative supermajority thanks to three Trump-appointed justices.Monday’s majority ruling, penned by Chief Justice John Roberts, is a disingenuous, bloodless discussion which pompously warns that “we cannot afford to fixate exclusively, or even primarily, on present exigencies”. The minority opinion, written by Justice Sonia Sotomayor, is screaming to the people to wake up: the city on a hill is on fire. A twice-impeached convicted felon who attempted to overturn the people’s verdict, reveres authoritarians and pledges to be a dictator (only “on day one”) could soon be re-elected. This is not about exigencies; this is an emergency.Justice Sotomayor outlined the new limits for a president: “Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organises a military coup to hold on to power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune … In every use of official power, the president is now a king above the law.”The court’s ruling grants complete immunity from criminal prosecution to core presidential powers. But it also grants presumptive immunity to other “official acts” – and these are extraordinarily widely drawn. Pressuring Mike Pence not to certify the 2020 election results would probably enjoy immunity, Chief Justice Roberts writes, because if the president and vice-president are discussing official duties, this is official conduct; and presiding over the results is a constitutional responsibility of the vice-president.The bar for overturning presumption looks sky-high, as Justice Sotomayor notes – doing so must pose no danger of intrusion whatsoever on presidential authority. The president’s motives cannot be examined. Nor can official acts be used in criminal cases relating to unofficial acts. The resulting scope is so great that any politician or official would surely balk at granting it to the other side – unless they were certain they could hold on to power indefinitely.This ruling will almost certainly, as it should, further lower declining support for a court now mired in scandal, thanks to the Republican-appointed Clarence Thomas and Samuel Alito. Other majority rulings in recent days have delivered a major blow to the regulatory powers of federal agencies and, extraordinarily, said that officials can accept cash or gifts from people they have assisted: they only count as bribes if given before the favour. This is a court for the rich and powerful, and it is making them more so. The founders intended the supreme court to be part of the solution to the tyranny of European kings. Mr Trump, and the court’s conservative justices, have made it part of the problem. More

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      Sotomayor says immunity ruling makes a president ‘king above the law’

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      In a stark dissent from the conservative-majority US supreme court’s opinion granting Donald Trump some immunity from criminal prosecution, the liberal justice Sonia Sotomayor said the decision was a “mockery” that makes a president a “king above the law”.The court ruled Monday that Trump cannot be prosecuted for “official acts” he took while president, setting up tests for which of the federal criminal charges over his attempt to subvert the 2020 election are considered official and sending the case back to a lower court to decide.“Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency,” Sotomayor wrote in dissent. “It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.”Sotomayor, writing in a scathing tone, said the court would effectively allow presidents to commit clear crimes without punishment, an expansion of presidential powers that puts democracy at risk. She and fellow liberal justice Ketanji Brown Jackson lay out hypothetical ways the court’s ruling could create crises in the US.“The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution,” Sotomayor wrote.“Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.“Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.“Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. 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.”Until now, presidents have operated under the assumption that their actions were not immune from criminal prosecution if they used their office, and the trappings of their office, to commit crimes, she writes. But going forward, presidents won’t be so concerned.“With fear for our democracy, I dissent,” she concluded.Jackson wrote a separate dissent, though noted that she “agree[s] with every word of her powerful dissent,” and wanted to lay out the “theoretical nuts and bolts of what, exactly, the majority has done today to alter the paradigm of accountability for Presidents of the United States”.The ruling changes the balance of power among the three branches of government and gets rid of the ability to deter presidents from abusing their power, “to the detriment of us all”, Jackson wrote. The “practical consequences” of the majority decision “are a five-alarm fire that threatens to consume democratic self-governance and the normal operations of our Government”.In a footnote in her dissent, Jackson games out the “oddity” of deciding whether a president is immune from prosecution based on the character of a president’s powers.“While the President may have the authority to decide to remove the Attorney General, for example, the question here is whether the President has the option to remove the Attorney General by, say, poisoning him to death,” Jackson wrote. “Put another way, the issue here is not whether the President has exclusive removal power, but whether a generally applicable criminal law prohibiting murder can restrict how the President exercises that authority.”skip past newsletter promotionafter newsletter promotionWhile the majority opinion, written by Chief Justice John Roberts, claims it hems in presidential immunity in some ways, Sotomayor takes that idea to task. The majority opinion is an “embrace of the most far-reaching view of Presidential immunity on offer”. No one has claimed that purely private acts would be immune from prosecution, she writes, making their exclusion an “unremarkable proposition”.The court effectively expanded what is considered an official act in a way that will capture events beyond a presidential’s core duties and ensnare unofficial acts, she claims. And a prohibition on bringing up these official acts during a prosecution of unofficial acts “deprives these prosecutions of any teeth”.She lays out an example: “For instance, the majority struggles with classifying whether a President’s speech is in his capacity as President (official act) or as a candidate (unofficial act). Imagine a President states in an official speech that he intends to stop a political rival from passing legislation that he opposes, no matter what it takes to do so (official act). He then hires a private hitman to murder that political rival (unofficial act). Under the majority’s rule, the murder indictment could include no allegation of the President’s public admission of premeditated intent to support the mens rea of murder. That is a strange result, to say the least.”The majority wrote that immunity is necessary because it allows the nation’s top elected official to execute his duties “fearlessly and fairly” and take “bold and unhesitating action” without the threat of looming prosecution. But, Sotomayor hits back, it’s more dangerous for a president to feel empowered to break the law.“I am deeply troubled by the idea, inherent in the majority’s opinion, that our Nation loses something valuable when the President is forced to operate within the confines of federal criminal law.”The testy dissent was replete with digs at the conservative-dominated court, which, aided by justices Trump appointed when he was in office, now counts just three liberal justices and has moved the country further to the right in recent years as a result.Sotomayor directs readers to “feel free to skip over those pages of the majority’s opinion” about one area in the conservatives’ arguments. She said the majority “invents an atextual, ahistorical, and unjustifiable immunity that puts the President above the law”. The conservatives relied on “little more than its own misguided wisdom”, she wrote. She added that “it seems history matters to this Court only when it is convenient.”“In sum, the majority today endorses an expansive vision of Presidential immunity that was never recognized by the Founders, any sitting President, the Executive Branch, or even President Trump’s lawyers, until now. Settled understandings of the Constitution are of little use to the majority in this case, and so it ignores them,” she wrote. More

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      For the sake of all of us, Sonia Sotomayor needs to retire from the US supreme court | Mehdi Hasan

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      Forget Ruth Bader Ginsburg. It is Sonia Sotomayor who is the greatest liberal to sit on the supreme court in my adult lifetime. The first Latina to hold the position of justice, she has blazed a relentlessly progressive trail on the highest bench in the land.Whether it was her lone dissent in a North Carolina voting rights case in 2016 (“the court’s conclusion … is a fiction”); her ingenious referencing of Ta-Nehisi Coates, James Baldwin and WEB DuBois in another 2016 dissent over unreasonable searches and seizures; or her withering observation at the Dobbs oral argument in 2021 (“Will this institution survive the stench that this creates in the public perception that the constitution and its reading are just political acts?”), Sotomayor has stood head and shoulders above both her liberal and conservative colleagues on the bench for the past 15 years.And so it is with good reason that she has been called the “conscience of the supreme court” (the Nation), “the truth teller of the supreme court” (New York Times) and “the real liberal queen of the court” (Above the Law).I happen to agree 100% with all of those descriptions. But – and it pains me to write these words – I also believe it is time for Sotomayor to retire.Why?Okay, now it is time to remember Ruth Bader Ginsburg. To recall how RBG, who had survived two bouts of cancer, refused to quit the court despite calls to do so from leading liberals during Barack Obama’s second term office. To hark back to her insistence, in multiple interviews, that it was “misguided” to insist she retire and that she would only stand down “when it’s time”. To recollect how, on her deathbed in 2020, she told her granddaughter that her “most fervent wish is that I will not be replaced until a new president is installed” – and how it made no difference whatsoever! Donald Trump nominated Amy Coney Barrett as RBG’s replacement just eight days after her death, and Senate Republicans confirmed Barrett to RBG’s vacant seat just eight days before election day.With Joe Biden trailing Trump in several swing states and Democrats also in danger of losing their razor-thin majority in the Senate, are we really prepared for history to repeat itself? Sotomayor will turn 70 in June. Of course, only Sotomayor knows the full status of her health, still it is public knowledge that she has had type 1 diabetes since she was seven; had paramedics called to her home; and is the only sitting justice to have, reportedly, traveled with a medic. To be clear: she could easily – and God willing – survive a potential Trump second term and still be dishing out dissents from the bench come 2029.But why take that risk? Why not retire now? Why not quit the bench at the same age that justices in Belgium, Australia and Japan are forced to do so?Let’s deal with the three most obvious objections.First, wouldn’t a replacement for Sotomayor that Senator Joe Manchin has to approve be less progressive, and more centrist, than our sole Latina, super-progressive justice? Perhaps. But, again, consider the alternative. Would we rather Biden replace Sotomayor with a centrist in 2024 … or Trump replace her with a far-right Federalist Society goon in 2025? Or, what if Trump doesn’t win but the Republican party takes control of the Senate and blocks a second-term Biden from replacing her between 2025 and 2028?Second, is there really any difference between a 6-3 conservative majority on the court and a 7-2 majority? Isn’t all lost already? Not quite. The damage to our democracy from a 7-2 hard-right court would be on a whole other and existential level. Yes, 6-3 has been a disaster for our progressive priorities (Dobbs! Bruen! Kennedy!) but there have also been a handful of key 5-4 victories (Redistricting! Razor wire at the border! Ghost guns!) in cases where Roberts plus one other conservative have come over from the dark side. None of that happens in a 7-2 court. The hard-right conservatives win not just most of the time but every single time.Third, how can anyone on the left dare ask the first, and only, Latina justice to quit the supreme court?It’s simple. Women in general, and Latinas especially, will suffer most from a 7-2 supreme court. It is because I am so worried about the future of minority rights in this country that I – reluctantly – want Sotomayor to step aside.This has nothing to do with her race or her gender. Forget RBG (again). Consider Stephen Breyer. You remember Breyer, right? The bookish and bespectacled liberal justice who quit the supreme court in 2022, at the age of 83, in part because of an intense pressure campaign from the left.The fact that he was a white man didn’t shield him from criticism – or from calls for him to stand down. In 2021, the progressive group Demand Justice sent a billboard truck to circle the supreme court building with the message: “Breyer, retire.” I joined in, too. “Retire, retire, retire,” I said in a monologue for my Peacock show in 2021. “Or history may end up judging you, Justice Breyer.”So why is it okay to pressure Breyer to retire but not Sotomayor? This time round, Demand Justice isn’t taking a position on whether an older liberal justice should quit while a Democratic president and Senate can still replace them and, as HuffPost reports, “on the left, there is little open debate about whether she should retire.”Democrats, it seems, still don’t seem keen on wielding power or influence over the highest court in the nation. In 2013, Barack Obama met with RBG for lunch and tried to nudge her into retiring, but as the New York Times later reported, Obama “did not directly bring up the subject of retirement to Justice Ginsburg”.Compare and contrast with Donald Trump. The finance journalist David Enrich, in his book Dark Towers, reveals how the Trump family carried out a “coordinated White House charm offensive” to persuade Justice Anthony Kennedy to retire in 2018. Trump himself, according to Vanity Fair, “worked for months to assure Kennedy his legacy would be in good hands”.The offensive was a success. Out went self-styled moderate Kennedy, in came the hard-right political operative Brett Kavanaugh.If there is to be a change to the supreme court in 2024, Biden and the Senate majority leader, Chuck Schumer, have only a few months left to make it happen. And yet they don’t seem too bothered about Sotomayor’s age or health. Last week, the White House press secretary, Karine Jean-Pierre, called it “a personal decision for her to make”.A personal decision? The prospect of a 7-2 conservative supreme court, with a far-right Federalist Soceity apparatchik having taken “liberal queen” Sotomayor’s seat on the bench, should fill us all with dread.Biden, elected Democrats, and liberals and progressives across the board should be both publicly and privately encouraging Sotomayor to consider what she wants her legacy to be, to remember what happened with RBG, and to not take any kind of gamble with the future of our democracy.If insanity is doing the same thing again and again and expecting different results, then I’m sorry but a liberal supreme court justice about to enter her 70s and refusing to retire on a Democratic president and Democratic Senate’s watch is nothing short of insane.
      Mehdi Hasan is the CEO and editor-in-chief of Zeteo More

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      DC media makes meal of supposed Sotomayor restaurant sighting

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      DC media makes meal of supposed Sotomayor restaurant sightingNewsletter reports supreme court justice dined with Democrats after incorrectly identifying Chuck Schumer’s wife as the justice

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      The most Washington website of all was forced to issue a diplomatic correction on Saturday, in a second recent iteration of perhaps the most Washington story of all: mistaken reporting about diners at Le Diplomate, a restaurant popular with DC politicos.‘When QAnon and the Tea Party have a baby’: Ron Johnson will run again for US SenateRead moreThe website in question was Politico, the capital and Capitol-covering tipsheet which with characteristic capitals informed readers of its Playbook email: “SPOTTED: Speaker NANCY PELOSI, Senate Majority Leader CHUCK SCHUMER, Sen[ators] AMY KLOBUCHAR (D-Minn) and DICK DURBIN (D-Ill) and Justice SONIA SOTOMAYOR dining together at Le Diplomate on Friday night.”The email also offered readers a “pic from our intrepid tipster”.Alas, it did not show Sotomayor.The “pic” showed French café tables, waiters, diners and a woman turning from her dessert to talk to Klobuchar, who was maskless and sitting opposite a masked-up Durbin. Schumer’s distinctive hairline could be seen next to Durbin and Pelosi could be seen, also maskless, to the right of a dark-haired woman with her back turned: supposedly the supreme court justice.Politico might have paused before pressing send. Not only could the supposed Sotomayor’s face not be seen but only last month another supposed scandal at “Le Dip” proved to be a “le flop”.Then, a former Republican aide tweeted that Pete Buttigieg, the transportation secretary, and his husband, Chasten Buttigieg, had been turned away.In fact, they were being seated outside. Politico covered the slip, reporting: “Within minutes we at Playbook were looped into this seemingly momentous news and were pretty excited ourselves to write about it today. Alas, our enthusiasm was dashed when we heard back from a Buttigieg spox who said there was nothing to it.”On Friday, a Sotomayor sighting would have been news. One of three liberal justices on the supreme court, she had not appeared in person for oral arguments earlier, over Joe Biden’s Covid vaccine mandate for private employers.Furthermore, in that hearing she had made an inaccurate claim about the Omicron-fuelled Covid-19 surge, saying: “We have over 100,000 children, which we’ve never had before, in serious condition and many on ventilators.”As the Washington Post fact-checker put it, that was “wildly incorrect”, as “according to HHS data, as of 8 January there are about 5,000 children hospitalised … either with suspected Covid or a confirmed laboratory test”.The Politico photo also came amid continuing speculation about when or if another liberal, Stephen Breyer, might retire, thereby giving Joe Biden a pick for the court before possible loss of the Senate. Schumer would shepherd any nominee into place.Alas for Politico, it soon became clear its tipster was wrong. The woman in the picture was Iris Weinshall, the chief operating officer of the New York Public Library, who is married to Schumer. A correction ensued but to make matters worse, Weinshall was initially identified only by her husband’s name. To make matters worse still, Schumer’s office told other outlets that unlike in le grande affaire de Buttigieg, Politico had not called to check on the tip from “Le Dip”.Politico acknowledged the slip and said standards had not been met.“We deeply regret the error,” it said.TopicsWashington DCUS politicsSonia SotomayorUS supreme courtChuck SchumerNancy PelosiAmy KlobucharnewsReuse this content More

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      'This is not justice': supreme court liberals slam Trump's federal executions

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      The supreme court justices Sonia Sotomayor and Stephen Breyer have excoriated the Trump administration for carrying out its 13th and final federal execution days before the president leaves office.Dustin John Higgs died by lethal injection at the federal correctional institute in Terre Haute, Indiana, on Friday night, after his 11th-hour clemency appeal was rejected.Higgs, 48, was convicted of murdering three women at a Maryland wildlife refuge in 1996, even though it was an accomplice who fired the fatal shots. Willis Haynes was convicted of the same crime but sentenced to life.“This was not justice,” Sotomayor, a Barack Obama appointee, wrote in an order issued late on Friday.Sotomayor, who was critical of the Trump administration’s July 2019 announcement that it would resume federal executions after a two-decade hiatus, condemned what she saw as “an unprecedented rush” to kill condemned inmates. All 13 executions have taken place since July 2020.The government executed more than three times as many people in the last six months than in the previous six decades“To put that in historical context, the federal government will have executed more than three times as many people in the last six months than it had in the previous six decades,” she wrote.“There can be no ‘justice on the fly’ in matters of life and death,” Sotomayor added. “Yet the court has allowed the United States to execute 13 people in six months under a statutory scheme and regulatory protocol that have received inadequate scrutiny, without resolving the serious claims the condemned individuals raised.”Breyer, a fellow liberal on the nine-justice high court, was equally scathing, naming each of the 13 executed prisoners and noting a lower court’s observation that Higgs had significant lung damage. The lethal injection of pentobarbital, Breyer said, would “subject him to a sensation of drowning akin to waterboarding”.He said the court needed to address whether execution protocols risked extreme pain and needless suffering and pressured the courts into last-minute decisions on life or death.“What are courts to do when faced with legal questions of this kind?” he wrote. “Are they supposed to ‘hurry up, hurry up?’”Breyer went further than Sotomayor by questioning the constitutionality of the death penalty, the first member of the current panel to do so. The third liberal justice, Elena Kagan, also dissented in the Higgs case but did not give an explanation.Higgs’s petition for clemency said he had been a model prisoner and dedicated father to a son born after his arrest. He had a traumatic childhood and lost his mother to cancer when he was 10, it said.He was convicted in October 2000 by a federal jury in Maryland for the first-degree murder and kidnapping in the killings of Tamika Black, 19; Mishann Chinn, 23; and Tanji Jackson, 21. Although Haynes shot the women, Higgs handed him his gun.“He received a fair trial and was convicted and sentenced to death by a unanimous jury for a despicable crime,” the US district judge Peter Messitte wrote in December.Arguably the most high-profile execution of the Trump administration came just days ago when Lisa Montgomery received a lethal injection at Terre Haute and became the first woman put to death by the federal government almost seven decades.Her lawyer accused the Trump administration of “unnecessary and vicious use of authoritarian power”.Many believe officials rushed to complete a series of executions before Joe Biden is inaugurated on 20 January. Biden has stated his desire to have the death penalty abolished at federal and state level. More