Legal experts are expressing concern about the widespread implications of the Supreme Court decision released Monday stating that Donald Trump and other past and future presidents enjoy “absolute immunity” for “official acts” taken in office.
In the 6-3 ruling, the court's right-wing majority said presidents are entitled to “absolute immunity” from criminal prosecution for actions related to their official duties. All three liberal judges dissented, with Justice Sonia Sotomayor writing that the decision “reshapes the institution of the Presidency,” and “makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is 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,” she wrote. “With fear for our democracy, I dissent."
On social media, many law experts have shared similar concerns. Lawyer Bradley Moss made a stark historical comparison to put the ruling into perspective:
“July 4, 1776 - we declare independence from a king, July 1, 2024 - the Supreme Court decides the president can basically be a king,” Moss wrote.
Moss also listed a number of things the president can now do while still theoretically retaining immunity. The list includes choosing to “nuke American cities filled with his political opponents,” execute the Supreme Court and “have the military execute Bannon in the prison showers tonight and be immune from prosecution.”
He then asked his followers: “do you want to risk living in a military dictatorship or not?”
Steve Vladeck, a law professor at Georgetown University, wrote that the Supreme Court’s inability to avoid splitting down partisan lines in this case is a “major institutional failure.” He also pointed out a small, but crucial part of the ruling.
“There's an important sub-part of the Trump immunity ruling in which #SCOTUS holds that 'protected conduct' (that can't be prosecuted) also can't be used as *evidence* to establish other charges,” Vladeck wrote on X.
This could hinder efforts to use official acts as evidence to determine prosecution against other charges, he explained. He also pointed out that the decision declares the president’s motive for the act irrelevant.
“If that's the case, how could a president ever actually *be* prosecuted for ordering the military, in his capacity as commander in chief, to kill his chief political rival?” he questioned on X.
Disregarding motive was a point of contention for other critics as well.
Harry Litman, former U.S. deputy assistant attorney general, said bad motives are “the soul of criminal law.”
“In dividing official from unofficial conduct, courts may not inquire into the President’s motives. But bad motives are what distinguish crim conduct; they're the soul of the criminal law,” he wrote on X.
Eric Segall, a law professor at Georgia State College of Law shared similar concerns in an interview with comedian Pete Dominick.
“If the president really thought he had to execute an American citizen living in America as a matter of military necessity as part of his commander in chief powers, the next question we would ask is ‘Why are you doing this? What’s your motive?’ Can’t ask that question,” Segall told Dominick.
Josh Chafetz, a law professor at Georgetown University, questioned if there is ”any way to read the majority such that ordering the military to assassinate a domestic political rival isn’t an official act and therefore absolutely immune?”
He also shared his thoughts on how Democrats could use the ruling to their advantage, suggesting they “should make opposition to the Republican Court the organizing theme of the November election."
In a simple but profound statement, Richard Primus, a constitutional law professor at Michigan University, wrote: “Fundamentally, the problem is the same as it has always been: the system is not built to withstand a Holmesian Bad Man as president.”
