For a Supreme Court that places great importance on history and tradition, its decision to grant Donald Trump broad immunity is clearly indifferent to either factor. Presidents have never enjoyed the presumption of perpetual immunity from prosecution, but six justices fantasised that the head of the executive branch could not function without it.
Writing in the majority opinion, Chief Justice John Roberts warned of the danger that “the President will be deterred from acting with the boldness and decisiveness expected of an independent executive branch. If the President must make decisions under the threat of prosecution, he may be less likely to exercise his powers of conduct without fear or impartiality.”
Really? Until now, the issue wasn’t whether former presidents could be held liable for felonies committed while in office. The debate was whether a sitting president could be indicted. That issue was largely resolved by a Justice Department policy adopted in 1973 that denied the option of indictment.
The department concluded that putting a sitting president on trial would be a waste of time and could distract him from the essential functions of the presidency. “Under the Constitution, a sitting president may be subject to criminal prosecution only after he has left office,” the department said in 2000.
But according to this court, a president would be deterred from carrying out his duties if he did not know that he could violate the laws of the country without the fear of being summoned to court.
But presidents have wielded their sweeping powers without any guarantee that they wouldn’t spend their twilight years in prison — and the prospect of eventual prosecution has not been enough to prevent them from abusing them.
Consider John F. Kennedy, whose FBI was involved in wiretapping and harassing Martin Luther King, Jr.; Lyndon Johnson ordered the FBI to place electronic listening devices on the campaign plane of his 1964 opponent, Barry Goldwater; FBI director J. Edgar Hoover, later asked why he agreed, replied, “I was just following the president’s instructions.”
Richard Nixon committed all sorts of illegal acts in what became known as Watergate. He certainly didn’t expect to escape prosecution, which is why he gladly accepted a pardon from his successor, President Gerald Ford.
George W. Bush condoned the torture of detainees during the War on Terror, despite it being expressly prohibited by both U.S. and international law. Bush may have been prosecuted, but he, too, benefited from the mercy of his successor. “The only people the Obama administration has prosecuted in connection with the torture program are those who exposed its existence to the media,” Vox noted in 2014.
People hold signs criticizing Donald Trump outside the US Supreme Court in Washington on July 1, 2024. (Drew Ungerer/Getty AFP)
The Supreme Court’s indifference to historical reality would be bad enough if it were merely an exercise in abstract theorizing. But given Trump’s example and the threat of his return to the presidency, it is deeply irresponsible.
Monday’s ruling gives the president broad immunity from criminal conduct that falls within the expansive category of “official duties.” Giving a re-elected Trump a get-out-of-jail-free pass is like giving a Glock and a Corvette to a teenage methamphetamine addict.
Trump doesn’t see the Supreme Court’s decision as a check on his own actions: He reads it as “Dismantling Democracy for Beginners,” a step-by-step guide on how to set up a corrupt dictatorship and then live happily ever after.
If Joe Biden were as power-crazed as Trump, we could handle him without the hassle of an election. Supreme Court Justice Sonia Sotomayor listed several outcome-free options available to the president, including: “Order Navy SEAL Team Six to assassinate a political opponent? Immunity. Orchestrate a military coup to stay in power? Immunity.”
Trump and his allies may fear granting such privileges to Biden, whom his campaign has likened to a “corrupt Third World dictator.”
In fact, they all rest easy knowing that this president is bound by fundamental beliefs in American democracy.
Trump will not be bound by those convictions if he returns to the White House. And the courts have ensured that he is not bound by the fear of criminal charges. He will have unprecedented freedom, and he will not hesitate to use it.
248 years ago, Americans vowed to never again be ruled by a monarch. On Independence Day, July 4, Trump’s accomplices in Congress and the Supreme Court should send a letter of apology to King Charles III. “What were we thinking?”
Steve Chapman served on the Tribune Editorial Board from 1981 to 2021. His Tribune exclusive column appears the first Thursday of each month. He can be reached at stephenjchapman@icloud.com.
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