The Supreme Court dealt a significant blow to Jack Smith‘s election subversion case against Donald Trump, with the six conservatives agreeing Monday with the former president that he should enjoy “absolute immunity from criminal prosecution for actions” undertaken as part of his official duties. “Such an immunity is required to safeguard the independence and effective functioning of the Executive Branch,” Chief Justice John Roberts wrote in the majority opinion, “and to enable the President to carry out his constitutional duties without undue caution.”
Though Roberts wrote that Trump “asserts a far broader immunity than the limited one we have recognized,” he and his conservative supermajority in their stunning 6-3 decision greatly expanded the scope of executive power—putting presidents, in some ways, above the law, as liberal justice Sonia Sotomayor wrote in a scathing dissent. “Today’s decision to grant former Presidents criminal immunity reshapes the institution of the presidency,” Sotomayor wrote. “It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.”
“With fear for our democracy,” Sotomayor added, “I dissent.”
The high court had done Trump a favor just in hearing the ludicrous case, in which his legal team had suggested a president could legally assassinate his political opponents. But the court’s slow-moving approach to the case has all but assured that a trial won’t take place before the November election, and the court’s conservatives could derail it entirely now with their decision holding that a president “is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts” and sending the matter back to the lower courts.
“BIG WIN FOR OUR CONSTITUTION AND DEMOCRACY,” Trump cheered on his social media page. “PROUD TO BE AN AMERICAN.”
The former president—who was charged by Smith with four federal felonies over his efforts to overturn his 2020 election loss to Joe Biden—has insisted that he has “total immunity” from prosecution, and his legal team argued to the high court that presidents “will not be able to properly function, or make decisions” without it.
It’s an absurd position, one that would essentially hold that the law does not apply to the most powerful person in the country. But the court agreed to take up the case in February, and members of its 6-3 conservative majority seemed to give credence to the Trump team’s outrageous claims in oral arguments back in April.
As right-wing justice Samuel Alito asked at the time, “If an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement, but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?”
But what Alito and company did in Monday’s ruling, legal experts warn, could destabilize democracy.
“Our democracy has been gravely wounded,” wrote former Attorney General Eric Holder on X. “The Trump immunity decision says: a president CAN VIOLATE THE CRIMINAL LAW if he acts within his broadly defined ‘constitutional authority.’ Absurd and dangerous. There is no basis in the Constitution for this Court constructed monstrosity.”
Berkeley law professor Orin Kerr wrote, “I don’t know if Trump is going to be reelected in 2024. But I know that, if he is, he’s going to preface every blatantly illegal thing he does by saying, ‘Official act, this is an official act.’”
“Thanks to Supreme Court today, Presidents in future will have access to far more unaccountable power than they ever have had in American history,” wrote presidential historian Michael Beschloss, adding, “Founders wanted a President, not a King.”
In recent months, Alito and Clarence Thomas each faced intense pressure to recuse themselves from the case: In the months leading up to the case, news surfaced that the former justice previously displayed flags outside his homes that indicated support for the pro-Trump insurrection January 6. Meanwhile, the latter’s wife, Ginni Thomas, attended both the rally that proceeded that day’s attack on the Capitol and pressed Trump allies to overturn his loss. Alito said his wife, Martha-Ann Alito, was responsible for the flags; both men refused to step away from the case; and Roberts declined to intervene, even as the scandals exacerbated the court’s longstanding credibility crisis.
The Supreme Court’s legitimacy as an independent arbiter of justice is sure to take an even bigger hit with the pro-Trump ruling by the conservatives, three of whom he installed. “The seeds of absolute power for Presidents have been planted,” liberal Ketanji Brown Jackson wrote in a dissent. “The Court has now declared for the first time in history that the most powerful official in the United States can…become a law unto himself.”
