Ex-Justice Department Officials Raise Alarm Over US Supreme Court’s Immunity Ruling
Former Justice Department officials and legal scholars are expressing deep concern over the US Supreme Court’s recent decision to grant absolute immunity to presidents from criminal prosecution for their “official acts.” The court’s 6-3 conservative majority ruling on July 1 has sparked widespread criticism, with many warning that it places presidents above the law and could embolden authoritarian tendencies, particularly in the case of former President Donald Trump should he win the presidency again.
Chief Justice John Roberts, writing for the majority in Trump v United States, asserted that a president is “absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority,” including broadly defined “official acts,” but not for “unofficial” criminal acts. This expansive view of presidential immunity has been particularly contentious, as it undermines parts of the four-count federal indictment against Trump related to his alleged efforts to subvert the 2020 election.
Experts argue that Roberts’ interpretation effectively nullifies at least one of the federal election subversion charges Trump faces, involving his pressure on top Department of Justice (DoJ) officials to endorse his false claims of a stolen election. Justice Sonia Sotomayor, in her dissent, described the ruling as creating a “law-free zone” that makes presidents “kings.”
Paul Rosenzweig, a former federal prosecutor, expressed grave concerns, stating, “The decision will embolden Trump and any other ill-minded president. It is hard to see how this decision is consistent with our history. We had a revolution to get rid of kingly prerogatives, and the Supreme Court just reinstituted it.”
Donald Ayer, a former deputy attorney general under George H.W. Bush, echoed these sentiments, calling the ruling “almost unbelievable” and highlighting the potential for negative repercussions. He noted, “Here they have truly revolutionized the powers of the president to place him above the law – an idea that had been regarded as anathema to our values until now.”
The ruling has also drawn attention to its potential impact on Trump’s future actions. Legal experts warn that the decision seems oblivious to Trump’s threats of “revenge” for the federal and state indictments he faces, which he has labeled “witch hunts.” In June, Trump posted on his Truth Social platform that he would “appoint a real special prosecutor to go after the most corrupt president in the history of the USA, Joe Biden.”
The decision disallows using evidence from official actions in cases where ex-presidents are prosecuted for strictly private actions, making it harder to establish clear motives for some of Trump’s alleged election subversion crimes. The court’s delay in issuing the ruling until the last day of its term, after taking about 10 weeks to decide, has also been criticized for failing to provide a clear distinction between official and private acts.
Steven Levitsky, a Harvard government professor and co-author of How Democracies Die, described the ruling as “one of the most reckless and irresponsible in Supreme Court history,” particularly concerning given the current political climate. He noted, “Our Supreme Court is dangerously close to saying Donald Trump’s assault on democracy was legal and constitutional.”
Daniel Richman, a Columbia law professor and former federal prosecutor, found Roberts’ reference to the president’s power to control criminal investigations and prosecutions “particularly troubling,” especially in light of Trump’s past efforts to erode prosecutorial independence.
The ruling has been met with sharp criticism from legal and political circles, with many viewing it as a radical departure from established precedent and a significant threat to democratic norms. As the legal battles continue, the implications of this decision are likely to be felt for years to come, potentially reshaping the balance of power in the United States.