Please ensure Javascript is enabled for purposes of website accessibility
Your Get-Out-of-Jail-Free Card Is Ready, Sir
d8a347b41db1ddee634e2d67d08798c102ef09ac
By The New York Times
Published 11 months ago on
July 4, 2024

Former President Donald Trump attends an event at the Palm Beach Convention Center in West Palm Beach, Fla., June 13, 2024. “If the president is a king, then we are subjects whose lives and livelihoods are safe only insofar as we don’t incur the wrath of the executive,” writes New York Times columnist Jamelle Bouie. “And if we find ourselves outside the light of his favor, then we find ourselves, in effect, outside the protection of the law.” (Damon Winter/The New York Times)

Share

Getting your Trinity Audio player ready...

Opinion by Jamelle Bouie on July 2, 2024

In 1977, nearly three years after leaving office in disgrace, President Richard Nixon gave a series of interviews to David Frost, a British journalist. Of their hourslong conversations, only one part would enter history.

Nixon Defended His Actions

“When the president does it,” Nixon told Frost, defending the conduct that ended his presidency, “that means that it is not illegal.” He went on to add that if “the president approves an action because of the national security — or in this case because of a threat to internal peace and order of significant magnitude — then the president’s decision in that instance is one that enables those who carry it out to carry it out without violating a law.” Otherwise, Nixon concluded, “they’re in an impossible position.”

On Monday, in a 6-3 decision along partisan lines, the Supreme Court affirmed Nixon’s bold assertion of presidential immunity. Ruling on the federal prosecution of Donald Trump for his role in the effort to overturn the results of the 2020 presidential election, Chief Justice John Roberts explained that the president has “absolute immunity” for “official acts” when those acts relate to the core powers of the office.

“We conclude that under our constitutional structure of separated powers, the nature of presidential power requires that a former president have some immunity from criminal prosecution for official acts during his tenure in office,” Roberts writes. “At least with respect to the president’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity.”

Official V. Unofficial Conduct

The majority divides official conduct from “unofficial conduct,” which is still liable for prosecution. But it doesn’t define the scope of “unofficial conduct” and places strict limits on how courts and prosecutors might try to prove the illegality of a president’s unofficial acts. “In dividing official from unofficial conduct, courts may not inquire into the president’s motives,” Roberts writes. “Such an inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II interests that immunity seeks to protect.” In other words, the why of a president’s actions cannot be held as evidence against him, even if they’re plainly illegitimate.

Roberts tries to apply this new, seemingly extra-constitutional standard to the facts of the case against the former president. He says that the president “has ‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute, including with respect to allegations of election crime” and may “discuss potential investigations and prosecutions” with Justice Department officials, effectively neutering the idea of independent federal law enforcement. Turning to Trump’s attempt to pressure Mike Pence into delaying certification of the Electoral College, Roberts says that this too was an official act.

Having made this distinction between “official” and “unofficial” conduct, Roberts remands the case back to a Federal District Court so that it can re-examine the facts and decide whether any conduct described in the indictment against Trump is prosecutable.

Decision Will Delay Trump’s Trial

The upshot of this decision is that it will delay the former president’s trial past the election. And if Trump wins he can quash the case, rendering it moot. The conservative majority on the Supreme Court has, in other words, successfully kept the American people from learning in a court of law the truth of Trump’s involvement on Jan. 6.

But more troubling than the court’s interference in the democratic process are the disturbing implications of the majority’s decision, which undermines the foundations of republican government at the same time that it purports to be a strike in defense of the constitutional order.

Presidential immunity from criminal prosecution does not exist in the Constitution, Justice Sonia Sotomayor observes in her dissent. The historical evidence, she writes, “cuts decisively against it.” By definition, the president was bound by law. He was, first and foremost, not a king. He was a servant of the public, and the framers believed he, like any other servant, was subject to criminal prosecution if he broke the law.

And while the majority might say here that the president is still subject to criminal prosecution for “unofficial acts,” Sotomayor aptly notes that the chief justice has created a standard that effectively renders nearly every act official if it can be tied in some way, however tenuously, to the president’s core powers.

If the president takes official action whenever he acts in ways that are “not manifestly or palpably beyond his authority” and if “in dividing official from unofficial conduct, courts may not inquire into the president’s motives,” then, Sotomayor writes, “Under that rule, any use of official power for any purpose, even the most corrupt purpose indicated by objective evidence of the most corrupt motives and intent, remains official and immune.”

This is Immunity

A president who sells Cabinet positions to the highest bidder is immune. A president who directs his IRS to harass and investigate his political rivals is immune. A president who gives his military illegal orders to suppress protesters is immune.

These examples only scratch the surface of allowable conduct under the majority’s decision. “The court,” Sotomayor writes, “effectively creates a law-free zone around the president, upsetting the status quo that has existed since the founding.” When he uses his official powers in any way, she continues, “he now will be insulated from criminal prosecution. Orders the Navy’s SEAL Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold on to power? Immune. Takes a bribe in exchange for a pardon? Immune.”

The bottom line, Sotomayor concludes, is that “the relationship between the president and the people he serves has shifted irrevocably. In every use of official power, the president is now a king above the law.”

If the president is a king, then we are subjects, whose lives and livelihoods are safe only insofar as we don’t incur the wrath of the executive. And if we find ourselves outside the light of his favor, then we find ourselves, in effect, outside the protection of the law.

Roberts says that presidential immunity from criminal prosecution is necessary to preserve the separation of powers and protect the “energy” of the executive. But the aim of the separation of powers was not merely to create exclusive spheres of action for each branch — if this were true, the Senate, which ratifies treaties and confirms executive branch appointments, would not exist in its current form — but to prevent the emergence of unchecked authority. Roberts has reversed this. Now separation of powers requires the absolute power of the executive to act without checks, without balances and without limits.

This Made a Mockery of Tradition

In their relentless drive to protect a Republican president and secure his power for a future administration, the conservative majority has issued a fundamentally anti-republican opinion. In doing so, it has made a mockery of the American constitutional tradition.

By the end of his time in the White House, Nixon was a disgrace. But to the conservative movement, he was something of a hero — hounded out of office by a merciless liberal establishment. One way to tell the story of the Republican Party after Nixon is as the struggle to build a world in which a future Nixon could act unimpeded by law.

Roberts has done more than score a victory for Trump. He has scored a victory for the conservative legal project of a unitary executive of immense power. Besides Trump, he has vindicated the lawlessness of Republican presidents from Nixon to George W. Bush. The Nixonian theory of presidential power is now enshrined as constitutional law.

This time when the president does it, it really won’t be illegal.

This article originally appeared in The New York Times.

By Jamelle Bouie/Damon Winter
c.2024 The New York Times Company

RELATED TOPICS:

DON'T MISS

What Are Fresno Real Estate Experts Predicting for 2025 and Beyond?

DON'T MISS

First California EV Mandates Hit Automakers This Year. Most Are Not Even Close

DON'T MISS

Disney’s ‘Lilo & Stitch’ Leads Record Box Office Over US Memorial Day Weekend

DON'T MISS

Tulare County Authorities Search for Man Missing in Tule River

DON'T MISS

Far-Right Israelis Confront Palestinians, Other Israelis in Chaotic Jerusalem March

DON'T MISS

Man Shot While Driving in Visalia, Police Investigating

DON'T MISS

Visalia Man Found Hiding in Closet After Fleeing Crash Scene

DON'T MISS

Valley Crime Stoppers’ Most Wanted Person of the Day: Anthony Frank Perkin

DON'T MISS

Why Kamala Harris Could Run for California Governor and Bypass Another White House Bid

DON'T MISS

No Yard? No Excuses—You Can Still Grow Your Own Food and Slash Your Grocery Bill

DON'T MISS

Palestinians to Raise Flag at WHO for the First Time After Vote

DON'T MISS

Hamas Agrees to US Proposal on Gaza Ceasefire, Palestinian Official Says

UP NEXT

Tulare County Authorities Search for Man Missing in Tule River

UP NEXT

Far-Right Israelis Confront Palestinians, Other Israelis in Chaotic Jerusalem March

UP NEXT

Man Shot While Driving in Visalia, Police Investigating

UP NEXT

Visalia Man Found Hiding in Closet After Fleeing Crash Scene

UP NEXT

Valley Crime Stoppers’ Most Wanted Person of the Day: Anthony Frank Perkin

UP NEXT

Why Kamala Harris Could Run for California Governor and Bypass Another White House Bid

UP NEXT

No Yard? No Excuses—You Can Still Grow Your Own Food and Slash Your Grocery Bill

UP NEXT

Palestinians to Raise Flag at WHO for the First Time After Vote

UP NEXT

Hamas Agrees to US Proposal on Gaza Ceasefire, Palestinian Official Says

UP NEXT

The MAGA Revolution Threatens America’s Most Innovative Place

Trump Threatens Action as Clovis Prepares for CIF State Track Championships

2 hours ago

Giants Are No Match for the Tigers’ Montero and Greene

2 hours ago

Fresno Police Arrest 20 for DUI During Enforcement Operation

2 hours ago

Ireland to Press Ahead With Trade Ban on Israeli-Occupied Areas

3 hours ago

Ohtani’s Great May Continues as He Hits Leadoff HR in 2nd Straight Game

3 hours ago

Palestinians Flock to US-Backed Aid Centers Despite Concern Over Checks

3 hours ago

Bulldogs Win MW Tournament Again, Head to UCLA for NCAA Baseball Regional

3 hours ago

FBI Announces New Probes Into Dobbs Supreme Court Leak, White House Cocaine Incident

3 hours ago

Trump Administration Moves to Cut All Remaining Federal Contracts With Harvard

4 hours ago

Ecstasy and Bribery Accusations in Sean ‘Diddy’ Combs Trial Bolster Racketeering Charge

4 hours ago

Eight More Drowning Deaths Added to Kern River Warning Signs

Early bird Memorial Day weekend traffic barely slowed as it passed the small group of media and Kern County Sheriff’s Office personnel gathe...

33 minutes ago

Lower Kern River
33 minutes ago

Eight More Drowning Deaths Added to Kern River Warning Signs

Caitlin Clark Against the NY Liberty
2 hours ago

Caitlin Clark Will Miss at Least Two Weeks With Quad Strain

David Sanchez Montes is Valley Crime Stoppers' Most Wanted Person of the Day for May 27, 2025. (Valley Crimes Stoppers)
2 hours ago

Valley Crime Stoppers’ Most Wanted Person of the Day: David Sanchez Montes

2 hours ago

Trump Threatens Action as Clovis Prepares for CIF State Track Championships

2 hours ago

Giants Are No Match for the Tigers’ Montero and Greene

2 hours ago

Fresno Police Arrest 20 for DUI During Enforcement Operation

Irish Taoiseach (Prime Minister) Micheal Martin delivers remarks during his visit at U.S. Vice President JD Vance's residence for breakfast, ahead of St. Patrick's Day, in Washington, D.C., U.S., March 12, 2025. (REUTERS/Leah Millis/File Photo)
3 hours ago

Ireland to Press Ahead With Trade Ban on Israeli-Occupied Areas

Ohtani Leadoff Home Run
3 hours ago

Ohtani’s Great May Continues as He Hits Leadoff HR in 2nd Straight Game

Help continue the work that gets you the news that matters most.

Search

Send this to a friend