In a landmark Supreme Court case on executive power, nearly a decade ago, Justice Antonin Scalia accused Justice Clarence Thomas of having a vision of the Presidency “more reminiscent of George III than George Washington.” Scalia died soon afterward, but Thomas remains on the Supreme Court as its current longest-serving Justice. The term that ended this month provoked President Joe Biden’s rebuke that the Court’s Presidential-immunity decision—which effectively guts much of Special Counsel Jack Smith’s criminal case against Donald Trump—has “fundamentally changed” the principle on which the nation was founded: “that there are no kings in America.” Biden, too, invoked Washington, whose character and belief in limited rather than absolute power “defined the Presidency.” But, after the Presidential debate, the visible evidence of Biden’s age-related decline had commentators urging him to follow the example of the nation’s first President by gracefully declining to run again. Instead, Biden’s defiant insistence that he will beat Trump, even in these circumstances, may seem more reminiscent of the other George, the king whose own impairment fuelled irrational decisions.
The anxiety about distinguishing a President from a king, which framed this Court term, is inextricably intertwined with the end-of-democracy theme of the 2024 Presidential race, the stakes of which feel existential to many. Both Democrats and Republicans have proclaimed that we will no longer have a democracy if the opposing party’s candidate wins in November. Trump’s statement that he won’t be a dictator “except for Day One” and promises of “vengeance” and “retribution” have been taken as confessions of despotic intent. Trump’s supporters, meanwhile, have alleged that Biden’s Administration is weaponizing law enforcement to criminalize his political enemies and influence the election.
The term featured three cases directly affecting Trump, each written by Chief Justice John Roberts. Trump emerged victorious in all of them. The first concerned whether Colorado could remove Trump from the ballot because he tried to overturn the results of the 2020 election. The Court held, unanimously, that states are not allowed to disqualify from their ballots any candidate for federal office whom they deem to be an insurrectionist, under the Fourteenth Amendment. This means that Trump will be on the ballot in every state. The second was about whether it is proper for the federal government to use a federal law, enacted after the Enron scandal, which makes it a crime to obstruct an official proceeding, to prosecute individuals for storming the Capitol on January 6th. The Court held, with the liberal Justice Ketanji Brown Jackson joining five conservative Justices, that the prosecution’s interpretation of the statute was incorrect. This means that the federal charges based on that provision—including some in Smith’s indictment against Trump—have to be thrown out.
The third blockbuster concerns the prosecution of Trump more broadly. It is about whether the former President is immune from criminal charges for acts committed while he was in office; namely, his conduct around the 2020 election, leading up to the events of January 6th. The Court held that a former President is “absolutely immune” from criminal liability for his official acts in core areas where the Constitution gives the President an exclusive power not shared with Congress: for example, commanding the armed forces, issuing pardons, vetoing bills—and criminal investigation and prosecution. Trump’s attempts to get the Justice Department to investigate election fraud and even to encourage fraudulent slates of electors are, according to the Court, in the core area that is absolutely immune from prosecution.
The Court also held that a former President is “at least presumptively immune from prosecution for his other official actions.” So there is criminal immunity for even an official act that is not in the core areas of exclusive Presidential power, but the government can rebut that presumption by showing that applying the criminal law to a particular action would pose no “ ‘dangers of intrusion on the authority and functions of the Executive Branch.’ ” The Court said that Trump’s pressuring Vice-President Mike Pence to use his role in the certification proceeding in Congress to reject legitimate electoral votes was this kind of official action, because “whenever the President and Vice President discuss their official responsibilities, they engage in official conduct.” The government may now attempt, in the district court, to rebut the presumption, but it is a tall order to show that there are no dangers of intrusion on the executive branch.
But many allegations in Smith’s indictment involve Trump’s communications with people outside the federal government, such as state officials, private parties, and the public (including tweets). The Court told the district court to sort out whether these acts were official or unofficial. There is no immunity from prosecution for unofficial acts, so some parts of Smith’s indictment may survive the Court’s ruling. But the time it will take for the district court to make the determinations, followed by more appeals, means that a trial on any remaining charges will be either very far in the future, if Trump loses in November, or nonexistent, if he assumes the Presidency and orders the case dismissed.
Like Smith’s case, the continuation of the Georgia state prosecution against Trump, regarding election tampering, will hinge on whether the conduct alleged is determined to be official or unofficial. Smith’s other federal prosecution against Trump, involving his retention of classified documents, should be unaffected by the ruling, because the allegations involve his conduct after he left office. But Trump will make arguments to the contrary, anyway. And, in the Manhattan District Attorney’s case, in which Trump has already been convicted of felonies, for falsifying business records, which involved unofficial acts, Trump is seeking to have the conviction set aside, arguing that some of the evidence introduced in the trial was about official acts. Judge Juan Merchan seems to have acknowledged the possibility that Trump may succeed, saying that he will now be sentenced on September 18th, “if such is still necessary.”
Absolute immunity inspires fear of absolute power. The idea that the Supreme Court has insured that a President is effectively a king—and set in motion the end of our constitutional republic—spread panic in the days after the Presidential debate that Trump was likely headed not for prison but for the White House. This time, he would go there emboldened by the Court’s stamp of legal impunity for corrupt and craven uses of executive authority for personal gain. As President Richard Nixon said, “Well, when the President does it, that means it is not illegal.” It’s not clear whether this Court would consider Nixon’s conduct in covering up his Administration’s role in Watergate an official act shielded by criminal immunity. Nixon received a pardon from President Gerald Ford for all federal crimes he “has committed or may have committed” and was never prosecuted, but, fifty years later, the Court’s immunity ruling makes it possible that a pardon may have been unnecessary.
The reigning theory of criminal accountability is that it serves to deter people from engaging in prohibited conduct. As the dissenters in the immunity case emphasized, giving a President immunity for official acts largely removes that deterrence to abuse official power. As alarming as that seems, it is also exasperating to entertain the notion that the best way to avoid ending up with a President who commits crimes in office is to warn him that he could one day be prosecuted for them. “Our Nation has never before needed an answer” to the question of a former President’s criminal liability, the Chief Justice wrote. But do we believe that accountability could ever be a deterrent for someone like Donald Trump? A subliminal message of the decision is that reliance on prosecution to hold a President accountable is pathetically too little, too late, given the scope of power that a President must wield to perform the job. The solution is to never elect a person of demonstrated bad character or, if we do, to vote him out, as was the case with Trump. But, if the citizenry wants to elect a known criminal, decline to remove him, or reëelect him, that is on the citizenry. Roberts’s opinion culminated with George Washington’s warning about the “frightful despotism” of “alternate domination of one faction over another, sharpened by the spirit of revenge.” In the background music of the ruling, the conclusion is that a dismal situation in which Trump ends up not being held accountable is still preferable to a world in which political retribution through criminal prosecution of one’s predecessor in office becomes a matter of course.
We should not overlook what the immunity decision means for Biden and Presidents other than Trump. If Trump is elected, he is expected to try to exact revenge by prosecuting Biden for, say, allegedly corrupt uses of the Justice Department or for alleged malfeasance regarding the border. The Court’s immunity ruling will stop that before it can begin, placing an important limit on executive power by way of a ruling that expands that power. As the Court found the need to say explicitly, the immunity “applies equally to all occupants of the Oval Office, regardless of politics, policy, or party.” We may soon be in a position to appreciate the logic of the immunity the Court established. But, if Trump is President, he could still prosecute other Bidens and Biden Administration officials—as well as Biden himself for unofficial acts, including the unauthorized possession of classified documents before his Presidency, which Special Counsel Robert Hur declined to prosecute.
The “regardless of politics” disclaimer is also worth considering with respect to another cluster of decisions this term on executive power. The most widely discussed of them, also written by Chief Justice Roberts, overruled Chevron U.S.A. v. Natural Resources Defense Council, a 1984 case that required judges to defer to executive agencies’ reasonable interpretations of ambiguous congressional statutes. The Court replaced that deference to the executive branch with a mandate that judges must interpret laws for themselves. This is expected to make it easier for courts to invalidate executive action, by disagreeing with the executive’s interpretation of what Congress did. In another case, the Court expansively extended the statute of limitations for lawsuits challenging a federal agency’s actions. In yet another, the Court held that, when the Securities and Exchange Commission pursues civil-fraud penalties, it must afford a defendant a jury trial, rather than decide the matter through “in-house adjudication.” These cases work in concert to expand the ability to challenge the executive branch and check the administrative state—even as the immunity case adopts an expansive view of Presidential power.
Many liberals who want to empower federal agencies to do things such as provide Americans with cleaner air, safer products, and less discriminatory schools and workplaces are critical of the Court’s moves to make it easier to challenge the actions of those agencies. Along those lines, liberals welcomed the Court’s dismissal of the challenge to the F.D.A.’s actions that make it less difficult to access the abortion drug mifepristone, based on the plaintiffs’ lack of standing.
But it all depends on what policy is being challenged. We should recall that, during the Reagan Administration, when Chevron was decided, liberals, suspecting administrators of working against environmental protection, disfavored the idea of judges deferring to agencies headed by a Republican President. (Chevron itself required deference to an agency action that environmentalists opposed, because it would arguably allow more pollution over time.) The Court’s rulings this term weaken a President’s ability to use the administrative state to his purposes. If we anticipate a Trump Presidency in which his appointees would attempt a wholesale renovation of some federal agencies’ goals by imposing new regulations or eliminating old ones, we might take solace in the expanded opportunities to provide a check on them.
This term, the Court, especially in the collection of cases authored by the Chief Justice, did not unequivocally elevate the executive over Congress or Congress over the executive. It did, however, unequivocally preserve its own power to check both branches. The message is that the executive is powerful to the extent that the Court allows it, but that ultimately the judiciary rules supreme. ♦
An earlier version of this article misstated the number of conservative Justices who voted in the majority in the case concerning January 6th convictions.