WASHINGTON —
The Supreme Court chose an unusual time to declare for the first time that presidents — past and future — are immune from the criminal law when it comes to their use of official or constitutional powers.
It comes just as former President Trump — who once promised to be “dictator for one day” — prepares to accept the Republican nomination to return to the White House.
Trump was also the nation’s first chief executive to refuse to accept his defeat in an election, insisting it was “stolen” and calling thousands of his supporters to come to Washington and to “fight like hell.”
The mob riot at the Capitol prompted the House to impeach him, a majority of senators to vote to convict him, and the Justice Department to bring criminal charges against him for conspiring to overturn the election results.
But the Supreme Court sent the opposite message Monday in the case of Trump vs. United States. The court’s six conservatives, all Republican appointees, said the Constitution has an unwritten immunity clause that shields presidents from being prosecuted or held to account for violating criminal laws when they are exercising their official powers.
Legal experts were surprised by the court’s opinion and predicted danger ahead.
“I can’t fathom what they were thinking,” said Donald Ayer, a former Justice Department attorney in the Reagan administration. “They know who Trump is. This will embolden him.”
Trump said recently he will seek “revenge” against those who have crossed him and his supporters. Earlier this week, Trump reposted an image calling Republican former Rep. Liz Cheney “guilty of treason” and and saying she should be prosecuted in “televised military tribunals” for her leading role in the House Jan. 6 committee’s investigation of the attack on the Capitol.
Fifty years ago this week, attorney Philip Lacovara went before the Supreme Court and urged the justices to order President Nixon to turn over the White House tapes. He won a unanimous decision, with three Nixon appointees joining in.
Lacovara was taken aback by Monday’s opinion, which he called the “most dangerous and anticonstitutional decision” since the 19th century.
“At the time of the Watergate investigations, not a single Supreme Court justice of any political affiliation would have taken seriously a claim that the president is immune from complying with federal criminal law. Not even Nixon in his wildest dreams ever imagined that any court would dignify such a claim,” he said. “This is part of a disturbing trend, as in, for example, Poland and Hungary, in which conservative justices on the right favor authoritarian concepts of presidential power.”
Today’s court conservatives believe in a strong role for the president as chief executive. Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh served as White House lawyers under Republican presidents, and they are skeptical of limits on the president’s powers. The court’s other conservatives have worked in Washington for decades, and they also wary of politically driven investigations and prosecutions.
At the same time, however, they have sharply limited the power of executive agencies. The so-called Chevron doctrine held that judges should defer to executive agencies like the Environmental Protection Agency or the Education Department when the president’s appointees adopt new regulations. But the court overturned that doctrine last week by the same 6-3 vote that expanded the president’s power this week.
John Malcolm, senior attorney at the conservative Heritage Foundation, hailed the immunity ruling as historic.
It is “undoubtedly one of the most significant constitutional decisions [the court] has ever issued with respect to the separation of powers and the powers of the presidency.” It “will likely have a bigger impact on how presidents are likely to act in the future while in office,” he added.
“The idea that a Supreme Court, with justices picked by Trump, are ruling on a matter of this import right before an election, it just seems stunningly bad timing beyond the merits of the decision itself, which i think were really suspect,” said Chris Whipple, who has written two books on the presidency.
Prior to this week, “you already have orange lights going off for what Trump might do in a second term in terms what he himself has said,” said William Kristol, a conservative critic of Trump who served in the George H.W. Bush White House. That includes using the pardon power and a raft of hard-right ideological proposals in the Heritage Foundation’s “Project 2025” report, which lays out an action plan for a second Trump term.
“This just turns the orange light into a red light,” Kristol said.
In addition to the legal changes, it creates psychological and political pressure on Republicans to carry out Trump’s most extreme impulses, experts say.
“Republican senators are already inclined to go along with Trump — and incidentally the court says he can do this and it will be used as an argument against anyone who is critical or hesitant to go along,” Kristol said.
Kristol envisions Trump obliterating post-Watergate norms that gave the Justice Department a measure of independence, and a trickle-down effect that would give license to Trump’s aides — inducing ideologues like Trump advisor Stephen Miller — to make demands of officials on Trump’s behalf.
John Bolton, Trump’s former national security advisor, argues that Trump never worried about guardrails in the first place.
“He has always thought that he could beat whatever rules anyone tried to impose on him,” Bolton said.
“Trump’s mind-set is: ‘I’m going to do what I want and if somebody doesn’t like it, let ’em litigate,’” Bolton said.
But Trump could be talked out of things in his first term, Bolton said. Trump would demand every few months to prosecute former Secretary of State John F. Kerry for allegedly violating the Logan Act by intervening in his Iran policy, Bolton recalled. His White House counsel would ignore or obfuscate, but the people he chooses in the second term are less likely to do that, he said.
“In the second term there will be people around him who will say, ‘Convene the grand jury,’” he said.“What happens if he declares martial law because of the invasion across the border? … I think the courts will continue to be a buffer. I hope so.”
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