A Dangerous Path

The Supreme Court decides there is immunity for a president’s official acts, opening the door for future authoritarian populists. Trump most of all.

If people ever ask themselves how it could have come to this — the decline of democracy and the rule of law in the United States — they will remember July 1. The Supreme Court decision by its conservative majority on Monday, which provides absolute immunity to current and former presidents for their official acts, but leaves the definition of an “official” act to the lower courts, opens the way for abuse of power.

The immediate effect of the ruling is that it is almost certain that Donald Trump will not have to stand trial on charges that he tried to overturn the results of the 2020 election. This was the first priority for Trump’s lawyers, and the Supreme Court justices played along and delayed a decision until the last possible moment before their summer break.

But the danger in the court’s opinion is not primarily that it could help Trump win reelection in November. More important is the fact of President Joe Biden’s unpopularity given his irreparable debate catastrophe last week and the foreseeable inability of the Democratic Party to pull the ripcord on Biden.

Anything Is Possible for Future Authoritarian Populists

The worst thing about the Supreme Court decision is the opportunities it gives Trump and future authoritarian populists. During arguments in the case last April, the Supreme Court questioned the attorney for Trump whether by “absolute immunity” they meant that a president, as commander in chief, would go unpunished if he ordered the military to assassinate a political opponent. “It depends,” Trump’s lawyer responded.

That should have set off every alarm, but the majority essentially bought Trump’s argument which holds that a president must be protected from future prosecution if he is to be courageous in making the frequently tough decisions the office demands in the interest of the country.

Had the justices at least clearly defined what constitutes an official act, i.e., an act insulated from prosecution, and what constitutes a non-official act, they might have left a few guardrails. But that is exactly what Chief Justice John Robert’s court delegated to the lower courts.

Trump may unwittingly ensure that the first cases under the court’s ruling are decided very soon. Just hours after the ruling, he sent his lawyers to New York on Monday to appeal his conviction on 34 felony charges in the hush money trial on the grounds he is immune under the Supreme Court ruling; a conviction for acts that occurred before Trump took office and clearly had nothing at all to do with a president’s official duties.

Everything Would Then Really Be Lost

If any court grants Trump’s insane appeal, then everything really is lost. It is more likely that his appeal will only lead to delaying his sentencing hearing, originally scheduled for July 11, and dragging out his legal proceedings for so long that there will be no further action in the case before Election Day.

The 6-3 conservative majority on the Supreme Court that Trump enabled is having a fatal effect. The justices whose nominations were based on recommendations from the right-wing Federalist Society are delivering what they were expected to according to a clearly political timetable. The court is still formally independent — it is clearly not ruling at the instruction of the current administration, but it is following a political agenda.

If Trump returns to office, he can nominate many more judges off the Federalist Society’s roster at all levels of the federal court system. The rule of law that protects against abuses by those who hold political power could then truly become a thing of the past in the United States.