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      How might a rogue president use the US supreme court immunity ruling?

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      “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters, OK … It’s, like, incredible.”The ruling of the US supreme court in Trump v United States last week establishes that the president has immunity from prosecution for “official acts” taken while in office. The term “official acts” was not defined in the case, leaving it for lower courts and establishing a precedent that the president broadly cannot be held accountable for breaking the law except under narrow conditions, or by impeachment, which itself only removes him from office without further consequence.“The court effectively creates a law-free zone around the president, upsetting the status quo that has existed since the Founding,” Justice Sonia Sotomayor wrote in a scathing dissent. This new official-acts immunity 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”.The decision seems to grant nearly limitless power to the office. Any act a president takes in the “core” functions of the job, such as appointing judges or issuing pardons, have absolute immunity. Any act taken in the “periphery” of his powers, like directions made to his staff or announcements made through official channels to the public, are presumed to be immune from prosecution, barring the finding of a judge otherwise. Acts taken outside of his official duties are not immune, though again: a judge makes that determination using ill-defined terms.It is roughly equivalent to the “enabling acts” of Nazi Germany. Coupled with the power of pardon – which allows the president to immunize anyone he or she chooses from federal prosecution without review or challenge from the other branches of government – the president can instruct subordinates of his or her choosing to act without regard for legal consequences.The idea that the president might declare a political opponent an enemy of the state and have a military sniper kill that person was raised as a hypothetical during oral arguments, and the resulting decision, incredibly, does not categorically rule that act a prosecutable abuse of power.Instead, we’re left in a fuzzy legal space, with judges left to decide what is “presumptively” immune and what evidence can be allowed to prosecutors after the fact to challenge that presumption.What might have once been an academic or intellectual exercise, the stuff of Tom Clancy novels or Aaron Sorkin scripts, is rapidly resolving into focus as a meaningful real-world problem. As I hear people discussing the ruling – and random people are discussing it everywhere I go – that’s the first thing they reach for. But the implications of the ruling and its effect on executive power are farther reaching than this.In some ways we have always been in a fuzzy legal space with regard to executive power. The assassination of a US citizen ordered by the president is not without precedent. Consider that Barack Obama ordered drone strikes on Anwar al-Awlaki, Samir Khan, and 16-year-old Abdulrahman al-Awlaki in Yemen in 2010. The then president did not face prosecution for this action.The question Trump v United States raises is whether he could have before now.How might a rogue president without political or moral constraint use the office for private gain, the punishment of political enemies, or to subvert the interest of justice and the public good?Start by looking at how executive power is exercised.The president has a set of delineated powers. Some require him to act in concert with others – the president signs treaties, but they must be ratified by the Senate. The president cannot draft a law unilaterally. Judicial appointments, ambassadorial appointments and appointments of cabinet members must be approved by the Senate.But much of executive authority is unilateral. The president can represent the US to foreign countries without constraint. The president commands the military, directs the activities of the CIA and FBI, directs the actions of executive branch employees, classifies or declassifies intelligence, and critically grants pardons without review.Consider each branch of executive authority, by department, and how a malevolent president might subvert the law.Department of StateThe constitution’s emoluments clause requires the president to refrain from accepting any gift, payment, or anything of value from a foreign state or its rulers. The state department maintains a protocol gift unit that makes sure the president or other federal employees don’t pocket anything from a foreign government worth more than a nominal amount, currently set at $480.Trump v United States establishes that the president cannot be prosecuted for this crime, even though it is black letter constitutional law. Receiving a gift from a head of state as president is almost certainly an “official act”, and if the president decides to steal that gift and deposit it in a bank account, or accepts the deed to a golf course in Dubai or a yacht that never makes port in the United States, there’s nothing that can be done about it, except to see if a federal prosecutor can introduce sufficient evidence to overcome the presumption of immunity after the fact.The ruling opens up potential for a foreign government to bribe their way out of state sanctions, an embargo or diplomatic trouble from, say, murdering a journalist working for a US newspaper.Department of the TreasuryThere are many levers here that a corrupt president can pull, but I’d like to focus on impoundment; the act of withholding money allocated by Congress for a specific function. It was an act of impoundment that led to Trump’s first impeachment and an issue that Steve Bannon repeatedly returns to when discussing executive power. Congress made impoundment a crime in 1974 after the abuses of Richard Nixon. The supreme court’s ruling affirms that the only remedy to this “high crime” is impeachment.Consider what would happen if the treasury department impounded funds directed toward any other government agency that wasn’t being cooperative. Medicare and Medicaid. HUD. The EPA. A compliant Treasury official could simply stop sending the Department of Education funding, which would prevent the issuance of new federally-backed student loans for college.There are other broader avenues for misconduct, however. Consider what would happen if the president instructed the secretary of the treasury to unilaterally withhold payment on bonds issued by the US government to specific creditors, all questions about the full faith and credit clause be damned. Consider how the IRS might target political opponents, a touchstone for conservative critics of the federal government and the investigation of church abuse of exempt tax status.Even the implied threat of regulation of financial instruments like cryptocurrencies can create changes in the market. A self-interested president who had not placed his or her personal investments in a blind trust could engage in wide market manipulation to his or herown benefit through regulatory action taken by treasury officials.And then there’s treasury’s role as the overseer of financial sanctions on entities like Russian oligarchs, Israeli settlers, Chinese government agents and international terror groups. A pliant or compromised president could redirect resources away from enforcement.Again, the legal question becomes one of presumptive immunity, as these areas are in the “periphery” of the president’s authority. Note that justices ruled that official acts cannot be used in evidence to support the prosecution of a crime committed in the president’s personal capacity, a complication which renders the practical prosecution of crimes of fraud, the use of public office for private gain or market manipulation difficult.Department of DefenseMilitary officers in the United States have maintained the armed services as an objectively apolitical institution stretching back to America’s founding. Its general officers have resisted attempts to change that. The approach of Project 2025 is to reduce the number of general officers because it is easier to find people who will place their loyalty – and their career prospects – inTrump’s hands.The military has about 1,000 men and women serving in the ranks of generals and admirals. Approximately 40,000 people serve at the rank of 0-5 or higher – that is a lieutenant colonel in the US army, air force, marines or space force, or a commander in the navy. Promotion of an officer to this rank requires approval by the Senate.But the president can fire an officer more or less at will. This is certainly true for removing general officers from command “in a time of war”. The statute does not define what a time of war means; it does not contain language requiring congress to declare war.A president intent on launching military action that is illegal or immoral – calling a Seal Team 6 operator to kill an American overseas, or perhaps someone within the United States – today can be expected to face a refusal to obey an unlawful order and a report to Congress. But a malevolent president can simply fire any officer who refuses the order, working through the ranks until he finds one willing to obey an illegal order, offering a presidential pardon that would immunize whoever obeys the order from the consequences of a court martial.This logic extends to orders for the military to violate posse comitatus – the mobilization of military force domestically, a violation of federal law. It could also extend to the use of nuclear arms, with a president serially firing officers who refuse to arm and launch a nuclear weapon.The president’s management of the military is a “core” function of the president; it is described in article II of the US constitution. Thus, the president likely enjoys absolute immunity from prosecution here.The functions of military intelligence, the CIA and the Department of Justice are separated by a wall of laws meant to protect US citizens from the government’s vast capacity for foreign military surveillance. After discovering abuses within the intelligence community in the Nixon era, Congress established a foreign intelligence surveillance court to review the work of the CIA and ensure that spies were not illegally surveilling US citizens.A president unconcerned with the law could simply walk intelligence gathered from one agency to another, with orders to act on it.Department of JusticeMuch of the constraint on abuses by the attorney general’s office are a matter of custom, not law. A set of internal policy guidelines governs the conduct of US attorneys. Surprisingly, the supreme court decision last month overturning the Chevron doctrine or the principle of legal deference to agency rule-making, may have done as much harm as Trump v United States in this regard. Justice department rules constraining federal investigators from targeting people for their politics – or targeting politicians who aren’t voting the right way – can be challenged on this basis by a politically-motivated appointee. More

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      How the US supreme court shredded the Constitution and what can be done to repair it | Laurence H Tribe

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      On 1 July 2024, the US supreme court, after an unconscionable half-year delay that it laughably described as “expedited” treatment, handed down Trump v United States, the immunity ruling placing American presidents above the law by deeming the president a “branch of government … unlike anyone else.” The court’s delay guaranteed that Donald Trump would face the electorate in 2024 without first confronting a jury of his peers instructed to decide, and thus inform voters, whether he was guilty of trying to overthrow the 2020 election.Famously, the English immigrant Thomas Paine advocated that we revolt against the Crown to form an independent country and frame a constitution to prevent the rise of a dictator “who, laying hold of popular disquietudes, may collect together the desperate and the discontented … [and] sweep away the liberties of the continent like a deluge”. To that end, Paine asked: “Where … is the King of America?” And he replied: “In America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.”In the court’s majority opinion, Chief Justice John G Roberts, Jr betrayed that promise and the Constitution that embodied it. He pretended that granting lifelong immunity from accountability to the nation’s criminal laws didn’t place the president “above the law”. In majestic circularity, he announced that the “President is not above the law” because it is the law itself that implicitly contains that immunity, to preserve “the basic structure of the Constitution from which that law derives”.But the idea that we need an unbounded chief executive to make the separation of powers work is grounded neither in theory nor in experience and contradicts the axioms of checks and balances. Worse still, the court’s decision delivers not a genuinely unbounded executive but one bound by whatever limits the court itself invents as it fills in the gray areas in its anything but black-and-white ruling. So it’s an imperial judiciary this court delivers in the guise of an imperial executive, not surprising for a court that just last week dismantled the administrative state by substituting itself for the panoply of expert executive agencies in Loper Bright Enterprises v Raimondo.The three dissenting justices objected, without rebuttal by the majority, that no prior president has needed this novel immunity from generally applicable criminal laws to operate as “an energetic, independent executive”, an objective the court placed above all else. The majority professed worry about “an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next”. But it said nothing to justify that worry – or to explain how the newly concocted less-than-absolute shield of presidential immunity could hope to solve the problem it conjured. After all, if we elect presidents unprincipled enough to direct their attorneys general to persecute their predecessors on trumped-up charges of abusing their official powers, there’s nothing to stop them from fabricating purely private – and, under the court’s new rule, non-immune – crimes by those predecessors.Beyond those glaring flaws in the majority’s reasoning, Roberts snidely accused the three dissenting justices of “fear mongering on the basis of extreme hypotheticals” that neither the majority opinion nor either of the two concurring opinions troubled to refute.What to make of the majority’s confusing instructions to the court trying Trump for the federal crimes through which he is alleged to have sought to overturn the 2020 election and the lawful transfer of power for the first time in our history? Only Justice Amy Coney Barrett, partly concurring and partly dissenting, wrote in no uncertain terms what the majority should have made clear but didn’t: “The President’s alleged attempt to organize alternative slates of electors … is private and therefore not entitled to protection … While Congress has a limited role in that process, see Art II, §1, cls 3-4, the President has none. In short, a President has no legal authority – and thus no official capacity – to influence how the States appoint their electors.” The majority should’ve endorsed Barrett’s brisk conclusion: “I see no plausible argument for barring prosecution of that alleged conduct.”The majority also offered no cogent reason to disagree with Barrett that, “beyond the limits afforded by executive privilege”, the US constitution doesn’t “limit the introduction of protected conduct as evidence in a criminal prosecution of a President”. As she and the three dissenters persuasively argued, the constitution “does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable” even if it does immunize them from prosecution on the basis of those circumstances. Bribery, a federal crime, makes the point perfectly. It’s nonsensical to hold, as the majority does, that a president who performs an official act like issuing a pardon in return for a bribe may be prosecuted for the bribe but may prevent the jury from learning about the backroom presidential conversations surrounding the pardon. The majority’s rejoinder that the pardon itself may be introduced in evidence as an official record is no answer at all.Indeed, the whole journey on which the majority embarks is misdirected. As dissenting Justice Ketanji Brown Jackson argued, it’s “cold comfort” to learn that “the President is subject to prosecution in his unofficial capacity … like anyone else”, because the “official-versus-unofficial act distinction” is both “arbitrary and irrational, for it … is when the President commits crimes using his unparalleled official powers that the risks of abuse and autocracy will be most dire”. She is right that vesting the president with uniquely sweeping powers and duties “actually underscores, rather than undermines, the grim stakes of setting the criminal law to the side when the President flexes these very powers”.I’ll let others sort through the tangled puzzles the court has left in its wake absent meaningful guidelines for distinguishing between the various categories of presidential conduct it enumerates. My main takeaways from this shameful decision are three: first, there is a compelling need for supreme court reform, including a plan to impose an enforceable ethics code and term limits and possibly create several added seats to offset the way Trump as president stacked the court to favor his Maga agenda; second, we should start planning for a constitutional amendment of the sort I have advocated in the New York Times to create a federal prosecutorial arm structurally independent of the presidency; and third, we need a constitutional amendment adding to Article I, Section 9’s ban on titles of nobility and foreign emoluments a provision expressly stating that nothing in the constitution may be construed to confer any immunity from criminal prosecution by reason of a defendant’s having held any office under the United States – and a provision forbidding use of the pardon power to encourage the person pardoned to commit a crime that the president is unable to commit personally.Amending the constitution to address problems the supreme court creates needn’t take long. When the court prevented Congress from lowering the voting age to 18 in state along with federal elections in Oregon v Mitchell, it took under seven months for us to adopt the 26th amendment to repair that blunder. And the court can overturn its own egregiously wrong decisions quickly, as it did in 1943 when it overturned a 1940 ruling letting states force children to salute the flag against their religious convictions in West Virginia State Board of Education v Barnette. As Justice Felix Frankfurter once wrote: “Wisdom too often never comes, so one ought not to reject it merely because it comes late.” Trump v United States isn’t just unwise. It’s a betrayal of the constitution. Overturning it should be an issue in this November’s election.
      Laurence H Tribe is the Carl M Loeb University professor and professor of constitutional law at Harvard Law School More

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      Democrats in disarray as Trump immunity ruling raises stakes

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      “With fear for our democracy, I dissent.” So wrote the supreme court justice Sonia Sotomayor in a minority opinion this week. She was far from alone in the view that, with Donald Trump threatening an “imperial presidency”, American democracy is at a moment of maximum peril.Millions are pinning their hopes on the Democratic party as the last wall of defence. Surely, they believed, Democrats would field their best and brightest led by a dynamic presidential candidate and demagogue slayer. Instead the party is offering 81-year-old Joe Biden and an internal civil war.Biden’s career-worst debate performance against Trump last month has triggered acrimony, angst and panic among Democrats just four months from election day. There are growing calls for oldest president in US history to step aside in favour of Vice-President Kamala Harris – or someone else. But Biden has so far dug in and vowed to fight on.It would be a hugely consequential decision for any party at any moment, but the one thing that Democrats agree on is the stakes are uniquely high. America’s highest court has shifted right, thanks to three Trump appointees, and could indulge his authoritarian impulses should he be elected. A Trump victory would also have dramatic implications for Ukraine and other US allies.“American democracy is facing a category 5 disaster here,” said Charlie Sykes, a conservative political commentator and Trump critic. “Not just the election but the court. Unfortunately the Democratic party feels like it’s paralysed and refusing to acknowledge reality.”Debate viewers were shocked because Democrats had created an alternate reality bubble, Sykes added. “It reminds me a little bit of what what the Republican bubble felt like a few years ago where people will say one thing in private but they won’t say it in public. In private people know that they have a real problem with Joe Biden, that it was a disaster, that it might not get better, but they’re unwilling to say that in public and right now that’s an untenable solution.”America celebrated its 248th birthday this week with its customary barbecues, fireworks and flag-waving, but its democracy has been ailing for some time. The Watergate scandal, which led to Richard Nixon’s resignation, and the Ronald Reagan era helped sow distrust in government, while the the 2008 financial crisis fuelled a sense that the system was failing to deliver.View image in fullscreenThe supreme court’s Citizens United decision in 2010 opened the floodgates for special interests to pour money into elections. Republicans have mounted voter suppression efforts. Gerrymandering, the process whereby a party redraws district boundaries for electoral advantage, has fuelled polarisation and often means the loudest and most extreme voices are rewarded in party primaries.Structural flaws have been brutally exposed. The Senate, where states have an equal voice irrespective of their population size, has become unrepresentative and calcified by procedural rules such as the filibuster. Republican presidential candidates have won the national popular vote only once in the past 36 years, yet both George W Bush and Trump gained the White House via the electoral college.That means five of the nine supreme court justices were appointed by a president who lost the popular vote. Trust in the court is now an all-time low. Along with corruption scandals, the justices have defied public opinion with decisions such as the overturning of Roe v Wade, a precedented that enshrined the constitutional right to abortion.In the past two weeks, the court’s rightwing majority delivered a big blow to the regulatory powers of federal agencies and ruled that officials can accept cash or gifts from people they have assisted: they only count as bribes if given before the favour. Then, most consequentially of all, came its decision to expand presidential power.In a 6-3 decision, the court said former presidents have absolute immunity from investigation or prosecution for official acts that fall within their core functions. They are also presumptively entitled to immunity for all official acts. They do not enjoy immunity for private actions.The ruling was a major victory for Trump, who stands accused of orchestrating the deadly January 2021 insurrection but will now almost certainly not face trial in Washington ahead of the election in November. Sentencing for Trump’s hush money convictions was also postponed until at least September as the judge agreed to weigh the possible impact of the decision.The dissenting opinion, written by Sotomayor, was scathing as she considered what a president can now do. “Orders the navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes 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.”There was condemnation of the ruling across the political spectrum. Sykes, author of How the Right Lost Its Mind, warned: “The supreme court decision raises the stakes because just imagine unleashing an absolutely immune Donald Trump on the nation, knowing that he can break the law at least in some respects with impunity.“That to me is the breathtaking part of it. It’s not some abstract where you’re talking about Jimmy Carter or Bill Clinton or George HW Bush. It’s Donald fucking Trump that you are basically saying should be above the law.”Paul Begala, a scholar at the University of Virginia’s Center for Politics and former adviser to Bill Clinton, told the Guardian’s Politics Weekly America podcast: “We had a good run. We go back to June 15, 1215: your country creates the Magna Carta. So we had 809 years of believing that no king, no president was above the law and that’s come to an end.“I’m sorry to sound cynical about it but it’s that dire because we’re about to put that power, potentially, in the hands of someone who we know from past experience will blow through any guideline, regulation and now he’s been given carte blanche by the supreme court.”View image in fullscreenTrump, 78, who is running a vengance-driven campaign and has expressed admiration for strongmen, has already quipped that he would be dictator on “day one” as president. His agenda for a second term is more extreme than the first – and better organised. The cabinet, congress and courts are likely to be more loyal and compliant, with fewer guardrails in place and fewer dissenters mounting resistance.Informed by policy documents such as the conservative thinktank Heritage Foundation’s “Project 2025”, Trump has made no secret of his plans to purge the federal government of thousands of civil servants deemed disloyal, weaponise the justice department against perceived political foes, slap 10% tariffs on thousands of imported goods and open detention camps to deport millions of undocumented immigrants.skip past newsletter promotionafter newsletter promotionIn this context, Biden is carrying the weight of the world on his frail shoulders: the 2024 election is a must win. But his raspy-voiced debate performance in Atlanta – losing his train of thought, stumbling over words, failing to combat Trump’s lies – revived anxieties over his fitness of office. Having identified him as the right man at the right time for the pandemic election of 2020, Democrats are now tormented by the possibility that they chose the wrong candidate for 2024.Questions swirled over whether Biden’s inner circle had been concealing his weaknesses from public scrutiny for some time. Congresswoman Nancy Pelosi, 84, a former speaker of the House of Representatives, wondered on the MSNBC network: “Is this an episode, or is this a condition? It’s legitimate – of both candidates.”After huddling with advisers and family members, Biden acknowledged that he nearly “fell asleep on the stage” during his poor debate showing, blaming it on a cold and jetlag, even though he had returned from Europe 12 days earlier. He told an all-staff campaign call: “I am running. I’m the nominee of the Democratic party. No one’s pushing me out. I’m not leaving.”The Biden campaign dug in its heels and dismissed the critics as “bed-wetters”, a dismissive attitude that disgusted some senior Democrats and made the situation worse. There was also frustration that Biden waited several days to do direct damage control with senior members of his own party. Some said the response had been worse than the debate performance itself.Two Democratic members of Congress called for Biden to quit the race and discontent on Capitol Hill is said to run much deeper, with many Democrats fearing that Biden could also cost the party the House and Senate. A major Democratic donor, Netflix co-founder Reed Hastings, also called on the president to step aside.Norman Solomon, national director of RootsAction.org, sponsor of the Step Aside Joe! campaign, said: “The train wreck around the bend is clear if he’s still the nominee, if he’s still the candidate. There’s an emergency cord that can be pulled.”View image in fullscreenSolomon warned: “The last days have brought powerful signs that the threat to democracy has become greater than ever. It’s a one-two punch. The obvious, clear evidence that Biden isn’t up to the job either to defeat Trump or to be president if he were to be re-elected.“Then this supreme court decision and it all underscores that the rather solipsistic fixations of the top of the Biden clan jeopardise democracy in a way that is a dream for the extreme right wing in the United States. The Biden performance was a gift-wrapped present to the Maga Republicans. It was everything but unwrapping the bow and taking off the wrapping paper.”The latest polls are fuelling alarm. A New York Times / Siena College survey found Trump leading Biden 49% to 43% among likely voters nationally, a three-point swing toward the Republican from before the debate. A Wall Street Journal poll found that 80% of voters think Biden is too old to run for a second term. A survey by Our Revolution, a political organising group, found that two in three progressives want Biden to suspend his campaign.But time is short to make a change. The Democratic National Committee announced weeks ago that it would hold a virtual roll call for a formal nomination before the party’s national convention, which begins on 19 August. Harris is emerging as the favourite to replace Biden if he were to withdraw, although governors Gavin Newsom of California and Gretchen Whitmer of Michigan remain viable alternatives.A messy, divisive convention – where protests over the war in Gaza are already expected – would only reinforce the suspicion that, with American democracy hanging by a thread, the Democratic party is failing to meet the moment.Larry Jacobs, director of the Center for the Study of Politics and Governance at the University of Minnesota, said: “American democracy and the force of the conservative movement that we’re seeing in the supreme court lacks a coherent, energetic counterpoint. The Democratic party is simply not up for the fight. The conservatives are marching ahead and the Democrats are flailing.”Jacobs added: “It’s reasonable to ask, why did it come to this with regards to Biden? Why weren’t party leaders intervening a year and a half ago to to usher off Biden to bring in genuine competition? Instead they leave it for a debate which realistic leaders could anticipate how it was going to turn out.“The fact that Trump was lying and bullying was known going in and Biden seemed so incapable of responding and so surprised by it. It was a very powerful signal of his infirmity but also of the infirmity party in moving past him. Joe Biden almost certainly can’t win, and the party seems incapable of processing that and taking action.” More

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      The US supreme court utterly distorted the true threat to American democracy | Lawrence Douglas

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      In its extraordinarily disturbing decision earlier this week granting presidents wide-ranging immunity from criminal prosecution, the US supreme court dramatically mis-weighed a competing set of risks to our constitutional democracy.On the one side of the scale, the court placed the possibility that a future rogue prosecutor will seek to settle political scores by indicting a former president for “insufficiently enforcing … environmental laws”.On the other side of the scale, we can place the possibility that a former president, having previously been charged with subverting the peaceful succession of power, returns to the White House, where he demands the prosecution of all those who tried to hold him to account.Or consider a related set of risks. On one side, the court imagines a president who is so fearful of the theoretical prospect of being prosecuted after leaving office that he fails to perform his duties in a “vigorous” and “energetic” manner. “Enfeebled” by the threat of future prosecution, the president is “chilled from taking the ‘bold and unhesitating action’ required of an independent Executive”.On the other side, we can imagine that a former president, having already successfully dodged any legal reckoning for his attempt to subvert the results of fair democratic election, now finds himself back in the White House and, cloaked with a blanket of immunity for all his “official actions”, grossly abuses that power.What are we to make of the fact that the court has clearly perceived the risks posed by a rogue prosecutor to far outweigh those posed by a rogue president – this notwithstanding the fact the dangers posed by the former are entirely speculative while those posed by the latter are all too real? In defense of the six-person majority one might argue that the court must fashion principles that apply generally to future cases – it cannot shape a remedy to address the particular threat posed by Donald Trump.Only that’s not true. The court could have limited itself to the matter at hand – whether Trump enjoyed immunity for his alleged acts of election interference as charged in the federal indictment. It could have held off to another day the larger question or scope of presidential immunity. And it could have reached this narrow decision months ago, thus affording the American people a trial court’s judgment concerning Trump’s most serious attack on American constitutional democracy, prior to the 2024 election.A simpler, and less savory, explanation of the court’s decision is that it’s stocked with Trump supporters. Three members of the six-person majority owe their positions on the court directly to Trump and they are not even the justices most obviously sympathetic to the former president. (That would be Clarence Thomas, the rigid ideologue with a Maga wife, and Samuel Alito, whose understanding of the Constitution seems driven by a prickly sense of grievance – who also evidently has a Maga wife.)And while I have a hard time believing – call me naive – that Chief Justice Roberts isn’t keenly aware of the dangers posed by Trump, his majority opinion is astonishingly purblind to those dangers. Take, for example, the court’s conclusion that because the constitution vests the president with the “core” duty to “take Care that the Laws be faithfully executed”, Trump enjoys absolute immunity for his dealings with the justice department – including his appeal to justice department officials, after Biden’s 2020 victory, to “just say that the election was corrupt + leave the rest to me … ”The court’s logic is oxymoronic: because the constitution demands the president faithfully execute the law, he is immunized for his attempt to corrupt and subvert that very law.Let’s also bear in mind that hours before the court handed down its tardy decision, Trump reposted messages on Truth Social, his personal social media platform, calling for the prosecution and imprisonment of his declared political enemies. Among those targeted were the former representative Liz Cheney (“guilty of treason” – a capital offense), the former vice-president Mike Pence, senators Chuck Schumer and Mitch McConnell, representatives Adam Schiff and Jamie Raskin, the vice-president Kamala Harris, and president Joe Biden.In his presidential campaign, Trump has been remarkably vague about his policy goals, but has openly and repeatedly declared his intention to use the justice department as a tool of personal vengeance. Now he can do so with impunity. At the very least, the court’s decision might shield Biden from Trump’s wrath – the others are all fair game.By way of trying to settle the nation’s nerves, the court reminds us that presidential immunity does not extend to private acts. Never mind that the court fails to offer a bright-line test between official and private acts while embracing a capacious understanding of the “official”. Still, we may rightfully ask what worries us more: the prospect that the president will rob a convenience store or that he will grossly abuse the very office that makes him the most powerful human on the planet?Back in the day of George W Bush’s misbegotten “war on terror”, John Yoo, at the time a lawyer in the office of legal counsel, wrote a notorious memo opining that the federal law criminalizing torture would be unconstitutional if applied to the president in times of war. This ominous claim led the senator Patrick Leahy to ask the then attorney teneral Alberto Gonzales, during a congressional hearing, whether the president could legally order genocide. At the time, Gonzales refused to answer, dismissing the question as hypothetical. Now the supreme court has offered a clear and shocking answer to the senator’s question.
      Lawrence Douglas is the author, most recently, of Will He Go? Trump and the Looming Election Meltdown in 2020. He is a contributing opinion writer for the Guardian US and teaches at Amherst College More

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      Biden in trouble as Supreme Court hands Trump another big win – podcast

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      As Americans celebrate Independence Day, Democrats are scrambling after a pretty disastrous week for the party – and arguably US-democracy.
      On Monday, the US supreme court handed Donald Trump a victory by ruling that former presidents are entitled to some degree of immunity from criminal prosecution. Stemming from this, the judge overseeing the former president’s criminal case in New York postponed his sentencing from next week to 18 September.
      This falls against the backdrop of Joe Biden trying to convince the public and members of his party that he is still fit to run for president. This week, Jonathan Freedland and Paul Begala, a former adviser to Bill Clinton, discuss how the Democrats can regroup

      How to listen to podcasts: everything you need to know More

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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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      The supreme court’s presidential immunity ruling mocks the rule of law | Corey Brettschneider

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      The US supreme court found this week that former presidents have presumptive immunity from prosecution for “official acts”. This ruling doesn’t just place Donald Trump above the law. The true danger of the opinion is that it could protect precisely the kind of official acts that might destroy the American republic itself.The origin of the idea that the official acts of a president are immune from prosecution is found in a case about a fired whistleblower. In 1970, President Richard Nixon fired A Ernest Fitzgerald, an air force management analyst, in retaliation for his publicizing information about cost overruns. Fitzgerald brought a civil suit against Nixon, seeking damages for his dismissal. The supreme court sided with Nixon, granting the president absolute immunity from “damages liability predicated on his official acts”.The court of that time defined “official acts” as those associated with the president’s duties under article II of the constitution, including the duty to “take care that the laws are faithfully executed”. It asserted immunity even for presidential acts within the “outer perimeter” of this duty. However, in this case the court was focused on insulating a president from worries about his financial liability so that he could more easily make decisions about everyday matters of governance, such as hiring and firing.The supreme court did not then define these official acts to include criminal acts by a president. In fact, its narrow decision precluded only the “particular private remedy” of a civil suit against a former president and even included a pledge to not “place a president above the law”.This week’s ruling grossly misconstrued the Fitzgerald decision, disregarding this pledge. Instead, it extended an opinion about immunity from civil damages suits to encompass criminal immunity for acts antithetical to the president’s duty to “take care”. The danger of immunity for criminal “official” action is that it protects the enormous power of the president when it is used for the most nefarious political ends, threatening the very existence of democracy.Consider Justice Sonia Sotomayor’s warning in her thunderous dissent that the decision could protect a president attempting to use the military to illegally retain power after losing an election, what political scientists call a “self-coup”. No courts should incentivize actions that could threaten the very stability of the republic.Yet that is precisely the kind of act the court has potentially protected – not just during a presidency but after it. While the court left open what counts as an “official act” – and returned the case to a trial court to determine whether the crimes Trump is charged with from January 6 fit this description – the door is now open to impunity for these crimes.Indeed, the events of January 6 are rightly understood as an attempted self-coup – acts from which the court has now largely shielded Trump from criminal liability. Even if the trial court tasked with hearing the case now decides that Trump’s actions were not “official”, the supreme court’s delay means the process would almost certainly extend past the election. If Trump were to retake power, he would then receive immunity while in office, effectively ensuring he never faces criminal responsibility for these events.View image in fullscreenThat risk of a presidential self-coup goes beyond Trump. Indeed, it has long been at the heart of the controversy over immunity. As I describe in my new book, The Presidents and the People, released this week, that risk played an unknown but crucial role in the most pivotal moment of the Nixon crisis.In the midst of Watergate, a grand jury of citizens voted in a straw poll to indict Nixon for associated crimes, but the special prosecutor Leon Jaworski sought to dissuade them from moving forward while Nixon was still in office. As he saw it, presidential immunity was needed to maintain national stability. He argued to the grand jurors that an indictment of Nixon might even prompt a self-coup.According to the deputy jury foreman, Harold Evans, “Mr Jaworski gave us some very strong arguments why he shouldn’t be indicted, and he gave us the trauma of the country and he’s the commander-in-chief of the armed forces and what happens if he surrounds his White House with his armed forces?”Jaworski’s rhetorical questions made clear the reasons why it would be dangerous to indict a sitting president. Yet even Jaworski clarified to the grand jury that they were free to indict Nixon after he left office. Only President Gerald Ford’s pardon prevented this. Jaworski’s logic supporting immunity for sitting presidents reinforces why immunity for former presidents is so dangerous. A president who not only committed crimes in office but attempted to cling to power in a self-coup might never face criminal prosecution.Indeed, this week’s opinion incentivizes behavior like a self-coup by ruling that a president can never be punished for such behavior as long as a court construes it as an official act. Such a president could claim the self-coup was official because it was an attempt to protect the country in an emergency. Trump himself has already falsely claimed his actions on January 6 were an attempt to fight voter fraud, an argument that his lawyers will frame as an official action.The irony of this week’s opinion is that it allows prosecution for former presidents only in the areas where their power is much less dangerous. In 1872, when President Ulysses Grant was allegedly stopped for a traffic violation, he is said to have paid the fine, though there is historical debate around the incident. Under this week’s ruling, Grant would receive no immunity for such an act, assuming he was speeding on his way to a private function.While the court was right to deny immunity to private actions like these, private acts are not why the question of immunity matters. The most dangerous acts of a president are those that are official – and those that now potentially receive immunity. At the country’s founding, Patrick Henry warned of a president who would realize that no legal checks limited the presidency. Realizing this, Henry claimed an ambitious president would not hesitate to crown himself a “monarch”.Before this week, that fear might have appeared hyperbolic. Today, however, Henry’s warning feels prescient. He is describing the kind of self-coup that the court could now potentially protect on the grounds that it was pursuant to the president’s duty to an official duty to defend the nation from instability.Given the danger of this opinion, it is imperative that we respond. Citizens must make this election about rescuing our democracy from authoritarianism. That means, first, defeating Trump and preventing him from shutting down this case. More broadly, it means demanding that our next president restore the basic checks of the rule of law on the presidency. We cannot allow a system that immunizes a criminal president from dangerous official actions.The next president must pledge to support legislation that prevents criminal official acts from presidential immunity or at least narrows the scope of immunized presidential behavior significantly. Given that the supreme court might strike down such a law, it is even more crucial to appoint justices who would uphold such a law and, more importantly, reverse the court’s disastrous decision this week.Our country has recovered before from a president’s authoritarian acts by electing leaders who would repudiate them. It is time we did so again.
      Corey Brettschneider is professor of political science at Brown University and the author of The Presidents and the People: Five Leaders Who Threatened Democracy and the Citizens Who Fought to Defend It More

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      The US supreme court just completed Trump’s January 6 coup attempt | Rebecca Solnit

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      The violent attack on Congress on 6 January 2021, and all the ancillary attempts to steal the 2020 election, were a coup attempt led from the executive branch of the federal government with support from Republicans in the legislative branch. 1 July 2024 – this Thursday – was a more successful coup attempt orchestrated by six judges of the judicial branch.“With fear for our democracy, I dissent,” wrote Justice Sonia Sotomayor in an opinion joined by justices Ketanji Brown Jackson and Elena Kagan, after the US supreme court’s conservative majority ruled that Donald Trump holds “absolute immunity” for “official acts” done while president. Part of what’s shocking about the state of the union right now is that an entire party and the US supreme court’s conservative majority have abandoned almost everything – the truth, the rule of law, their own legitimacy, their place in history and the fate of the nation – to serve one man.They could not have picked a more outrageous man to throw their weight and reputations behind – a psychotic clown who’s also an indicted felon found liable in civil court for sexual assault, barred from doing business in New York, a stealer of state secrets, a would-be thief of an election and the instigator of a violent attack on the legislative branch of government and the constitutionally mandated transition of power after an election. A grifter who in 2016 won a minority victory in a corrupted election – his conviction earlier this year was on charges for one small part of that corruption. A man who has gloated about seizing dictatorial powers and never letting go and a worshiper of tyrants denounced by dozens of his former cabinet members and senior staffers.January 6 was an attack on the constitution and so was 1 July. That no one is above the law has been a pillar of this nation and a cherished value since the 18th century; to knock it down in the 21st destabilizes structures and values that have stood these two centuries and more. A president with total immunity poses obvious threats to the rule of law, the balance of powers and democracy itself, and if that president is the vindictive criminal on the Republican ticket the dangers are immediate and obvious.The day before this ruling Trump approvingly shared a post on his own social media platform calling for Liz Cheney, the former Republican congresswoman, to be tried in a televised military tribunal – for boldly opposing his coup attempt and being one of the few members of their party to support his impeachment. She committed no crimes and the military has no jurisdiction over her, but under Trumpism there are no laws, just opportunities.The people I talked to and saw on social media were stunned, horrified, uncertain of what we do next. When the agency that is supposed to be the final authority on the rule of law becomes lawless, what do you do? There is much we can do, and much of it will be new kinds of campaigns with new goals, because we are in unprecedented territory.While a lot of elected officials seemed immobilized by this much-anticipated legal ruling, Alexandria Ocasio-Cortez, the representative, vowed to introduce legislation to impeach some supreme court justices – she didn’t say which ones, but it seems likely that Samuel Alito and Clarence Thomas top her list. The Politicus newsletter notes that the senator Sheldon Whitehouse, a Democrat from Rhode Island, “has been one of the few members of Congress who has consistently sounded the alarm about Supreme Court corruption for years, and he isn’t letting the Senate’s limitations stop him from planning a massive investigation” of the supreme court.Of course this has been brewing for a long time. Before these decisions were handed down, journalists were reporting on the Alito household flying apparently pro-insurrection flags in open defiance of norms of judicial neutrality and on more illicit gifts Thomas had taken. Thomas’s wife was an eager participant in the January 6 coup attempt and all the back-room machinations around it; he and Alito were obliged by all norms and ethical principles to recuse themselves from Thursday’s decision, aptly titled Trump v United States, but of course did not.That was just part of the supreme court majority’s rampage this summer. As Nation legal correspondent Elie Mystal wrote a few days before, of the ruling that is devastating for environmental protection and science-based policy: “In the biggest judicial power grab since 1803, the Supreme Court today overruled Chevron v Natural Resources Defense Council, a 1984 case that instructed the judiciary to defer to the president and the president’s experts in executive agencies when determining how best to enforce laws passed by Congress. In so doing, the court gave itself nearly unlimited power over the administrative state and its regulatory agencies. The US Constitution, flawed though it is, has already answered the question of who gets to decide how to enforce our laws. The Constitution says, quite clearly, that Congress passes laws and the president enforces them. The Supreme Court, constitutionally speaking, has no role.” Until now.Then came Monday’s bigger judicial power grab, because as another legal pundit, Asha Rangappa pointed out, in saying official presidential acts were above the law, the court “has made itself the ultimate umpire of what is ‘official’ or ‘not official,’ thereby giving itself power to determine which prosecutions are warranted and which aren’t. Basically, they’ve made themselves, not POTUS, the kings here.” Mystal tweeted, “I mean, at a core level, listening to us lawyers is of no more use here. We are beyond ‘law.’ We are beyond principles we studied or researched” while sharing her fellow law journalist Dahlia Lithwick’s declaration, “As an official representative of the legal commentariat I want to suggest that tonight’s a good news cycle to talk to the fascism and authoritarianism experts. This is their inning now…”We do have fascism and authoritarianism experts, who are often also scholars of civil society resistance and the ways dictatorial regimes can be resisted and toppled. And we do know that this is a time when civil society participation will be crucial. First of all to make sure a Democrat takes the White House in November; from that victory much can be restored. If Trump wins, the pieces of the coup will cohere into not the end of democracy in America but at least its kidnapping and torture by its enemies.There are remedies within the legislative process and the rule of law to some of this. But we will only get them with massive public participation. Civil society must press the case that this court is fatally illegitimate and Roberts, Alito and Thomas must resign. And we must press our legislators to act. Other countries have survived worse, and most of the countries to the south of the US have been through revolutions, coups, dictatorships and other dramas in the past century, as well as successful non-violent resistance and democratic triumphs.One thing is clear after this epochal supreme court decision: the fate of the country is in the hands of its people. Or rather two things are clear: the rightwing pursuit of increasingly outrageous minority rule is because they are increasingly a minority; the will of the people and the majority of votes are not on their side when it comes to everything from reproductive rights to climate action. Which is why they have to suppress votes, gerrymander districts, try to steal elections and now torch the constitution. In one way, this demonstrates their strength. In another, their weakness. It’s up to us to make that weakness matter more than that strength.
      Rebecca Solnit is a Guardian US columnist. She is the author of Orwell’s Roses and co-editor with Thelma Young Lutunatabua of the climate anthology Not Too Late: Changing the Climate Story from Despair to Possibility More