Immune, Immune, Immune

Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency.  It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.  Relying on little more than its own misguided wisdom about the need for “bold and unhesitating action” by the President, the Court gives former President Trump all the immunity he asked for and more.  Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent.

Looking beyond the fate of this particular prosecution, the long-term consequences of today’s decision are stark. The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. 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 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. 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.

Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop. 

With fear for our democracy, I dissent.

-- Supreme Court Associate Justice Sonia Sotomayor, joined by Justice Kagan and Justice Jackson, dissenting in Donald J Trump v United States, in which the majority held that former presidents are immune from prosecution for most acts taken while in office