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Historians, legal experts express dismay at Trump immunity ruling

Supreme Court 'issued an instruction manual for lawbreaking presidents'

Protesters hold signs in front of the Supreme Court in Washington while waiting Monday for the court to announce its decision on presidential immunity.
Protesters hold signs in front of the Supreme Court in Washington while waiting Monday for the court to announce its decision on presidential immunity. (Bill Clark/CQ Roll Call)

Historians and legal experts warned Monday that the Supreme Court’s presidential immunity ruling opens the door to dangerous abuses of power and strikes against foundational American principles of accountability under the law.

Michael Waldman, president of the Brennan Center for Justice and author of several books about the country’s legal landscape, said there are reasons to be nervous when it comes to the prosecution of a former president and some standards would make sense.

“Here, though, the Court has issued an instruction manual for lawbreaking presidents,” Waldman said on social media. “Make sure you conspire only with other government employees. You’ll never be held to account.”

Presidential historian and author Michael Beschloss was among those who referred to the idea that the decision cut against the intent of the nation’s founders.

“Thanks to Supreme Court today, Presidents in future will have access to far more unaccountable power than they ever have had in American history,” Beschloss posted on social media. “Founders wanted a President, not a King.”

Historian and author Garrett Graff, who wrote a book on Watergate, brought up the infamous quote from President Richard Nixon — that if a president does it, that means it’s not illegal — and said nobody had believed it was true.

“All of American history argues the opposite. And yet that’s exactly what the Supreme Court agreed today,” Graff wrote. “The entire test of Watergate was no one is above the law. Today, the Supreme Court made one man above the law.”

The sharply divided 6-3 decision wiped out some of the case in Washington against former President Donald Trump, the presumed Republican nominee for president, and all but guaranteed a trial will not happen before the November election.

Future presidents

But those in the legal and political arenas expressed concern about what the ruling would mean for the actions of future presidents who could use their core constitutional authorities as a shield against criminal liability.

Asa Hutchinson, the former Arkansas governor who ran unsuccessfully in the GOP 2024 presidential primary, said the Supreme Court gave presidents greater control of the Justice Department. That’s because, Hutchinson argued, the decision says an “official act” that gets immunity includes threatening to fire the attorney general if he does not take an action.

“I can only imagine how this may be abused,” Hutchinson tweeted.

Sen. Alex Padilla, D-Calif., said the decision “afforded future presidents carte blanche to abuse the powers of their office for political and personal gain, and laid the foundation for Donald Trump to have absolute authority in a potential second term.”

Orin Kerr, a law professor at University of California, Berkeley predicted that, if Trump wins the 2024 election, “he’s going to preface every blatantly illegal thing he does by saying, ‘Official act, this is an official act.’”

Michael C. Dorf, a professor at Cornell Law School, said that if he was reading the decision correctly, a president “can openly accept bribes for pardons, because those fall within his ‘exclusive’ authority. Good to know.”

Justice Sonia Sotomayor underscored what she saw as the future ramifications of the ruling in a sharp dissent. The U.S. president “is the most powerful person in the country, and possibly the world” and will now be “insulated from criminal prosecution” when using their official powers in any way, she wrote.

“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,” Sotomayor wrote.

Overblown response?

Chief Justice John G. Roberts Jr., in the majority opinion, wrote that the Sotomayor dissent and one from Justice Ketanji Brown Jackson strike “a tone of chilling doom that is wholly disproportionate to what the Court actually does today,” and called it “fear mongering on the basis of extreme hypotheticals about a future where the President ‘feels empowered to violate federal criminal law.’”

And Roberts had a prediction of doom if the court had ruled differently. “The dissents overlook the more likely prospect of an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next,” Roberts wrote.

House Judiciary Chairman Jim Jordan, reacting to the ruling, said “hyper-partisan prosecutors like Jack Smith cannot weaponize the rule of law to go after the Administration’s chief political rival.”

“We hope that the Left will stop its attacks on President Trump and uphold democratic norms,” he said.

Trump, in a social media post Monday, wrote in all capital letters: “Big win for our Constitution and democracy. Proud to be an American!”

Sen. Lindsey Graham, R-S.C., issued a statement that the ruling “makes perfect sense to me” because core constitutional authorities must come with absolute immunity and other official acts will be determined by factual analysis.

“The Supreme Court’s dissent in this case is foolish in every way, particularly Justice Sotomayor and Justice Jackson’s argument that this decision allows a president to assassinate their opponent,” Graham said. “The liberal members of the Court and the Left have lost their minds when it comes to President Trump.”

‘Scary thing’

Quentin Fulks, principal deputy campaign manager for President Joe Biden, said Monday the Supreme Court’s decision left him “scared as s**t.”

“They just handed Donald Trump the keys to a dictatorship,” Fulks said on a media call organized by Biden’s reelection campaign. “The Supreme Court just gave Trump a permission slip to assassinate and jail whoever he wants to gain power.”

Rep. Jasmine Crockett, an attorney and an Oversight and Accountability Committee member, described herself as “very shook” with a feeling of being “powerless” after the high court’s decision.

“They are allowing him the ability to kill someone,” the Texas Democrat said on the call. “This is a very real and scary thing for me.”

“I’ve got to focus on the fact that … we have seen a consolidation of power under Trump from this Supreme Court because essentially, the courts are not separated,” she added. “We used to have checks and balances. I am not feeling that right now.”

Rep. Dan Goldman, also a member of the House Oversight and Accountability Committee, called the Supreme Court “conflicted and compromised,” arguing the decision “has set back our democracy dramatically.”

The majority’s ruling “allows for someone like Donald Trump to conspire with others, while utilizing ostensibly official acts as president to conspire to overturn an election,” Goldman said on the same call.

“It essentially says that if there’s any plausible official explanation for anything that a president does, that effectively is not only immune from being used … in furtherance of a crime, but it’s prevented from being used as evidence of a crime,” he added. “It is a sweeping and devastating opinion for our separation of powers and for our fundamental belief and notion that no one is above the law.”

A White House official responded to the Supreme Court’s presidential immunity decision by noting Biden has said “nobody is above the law.”

“That is a core American principle and how our system of justice works,” spokesman Ian Sams said in an email. “We need leaders like President Biden who respect the justice system and don’t tear it down.”

John T. Bennett contributed to this report.