The Supreme Court’s immunity ruling doesn’t just ensure that the criminal trial of former president Donald Trump for his role in trying to overturn the results of the 2020 election will be delayed beyond Election Day, if it goes forward at all. It has also given future presidents, including those who seek to abuse the office of the presidency for their own benefit, a road map of how to do so with impunity.
On its face, the court’s holding seems reasonable enough: Actions at the core of presidential duties, as defined by the Constitution, have absolute immunity, lest presidents be hampered in their duty by an ever-present threat of litigation and prosecution.
By contrast, presidents have no immunity for unofficial acts, because no one — not even presidents — is above the law.
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For acts that lie ambiguously in the middle of those two categories, presidents enjoy a presumption of immunity — meaning that it is not their job to prove they are immune, it is the job of the prosecutor to prove they are not.
The court could have left it there and sent the case back down to the trial court. But the 6-3 ruling, issued Monday, split starkly down ideological lines, went much further in a way that not only places a firm thumb on the scales of justice in Trump’s favor but also turns the office of the presidency into a virtual haven for future despots.
First, the majority’s opinion, authored by Chief Justice John Roberts, insulates presidents from any accountability for actions taken within their “exclusive constitutional authority,” which includes “management of the executive branch.” That means Trump’s attempt to weaponize the Justice Department by firing the acting attorney general and installing a loyalist in his place cannot be prosecuted and the charges in Special Counsel Jack Smith’s indictment based on those actions must be dismissed.
The court doesn’t simply remand the rest of the case back to Judge Tanya Chutkan of the US District Court in Washington to determine if the other charges fall within the bounds of immunity. The justices also tie her hands, limiting both the evidence and legal factors she may consider.
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First, Roberts declares that conversations between a president and vice president enjoy a strong presumption of immunity. Meaning Chutkan cannot allow Trump to be prosecuted for pressuring then-Vice President Mike Pence to block the electoral count on Jan. 6, 2021, unless such prosecution poses “no danger of intrusion” on the official duties of the executive branch. That is a high bar, one the justices will surely have more to say about once Chutkan’s rulings are appealed.
Also, Chutkan is prohibited by the Supreme Court from considering the motives for Trump’s actions.
“Such an inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose,” which is what “immunity seeks to protect,” Roberts wrote. So, the fact that Trump was trying to hold onto power by destroying the democratic process cannot even be considered. That strains credulity and common sense.
Chutkan also may not deem a presidential act unofficial merely “because it allegedly violates a generally applicable law.” That limitation essentially blesses the dangerous assertion made by former president Richard Nixon in an interview after he left office: “Well, when the president does it, that means that it is not illegal.”
This puts Chutkan in the unenviable position of parsing not only the still remaining legal claims presented in Smith’s indictment but also examining the evidentiary record to scrub it of any evidence of actions that may fall within the category of official acts.
That will take time, resources, and will almost surely be the basis of an immediate appeal by Trump. This, of course, will be on top of the appeal he is certain to wage in response to the court’s earlier ruling this term tossing out federal charges of corruptly obstructing an official proceeding against hundreds of Jan. 6 rioters. Trump too faces those charges for his actions, and Chutkan will also have to consider what impact that ruling may have on Trump’s prosecution.
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Without such appeals, the possibility of conducting a trial to verdict before Election Day was slim. With them, it is nonexistent. And if Trump wins the election, the Supreme Court’s ruling ensures that he will have the ability to order the Justice Department to scuttle the prosecution entirely — an action that will be protected by this court’s broadened doctrine of absolute immunity.
It is hard to fathom that this outcome was what the Framers of our Constitution had in mind. Alexander Hamilton, in number 69 of the Federalist Papers, stated plainly that in addition to the ability of sitting presidents to be impeached, former presidents would be “liable to prosecution and punishment in the ordinary course of law.” To hold otherwise would be to cloak American presidents in the very kind of inviolability the King of England enjoyed.
But that is essentially what the court’s opinion has done. Roberts declares that the opinion isn’t meant for just the current situation but must apply, as Justice Neil Gorsuch put it during oral arguments, “for the ages.” But we need not look into the distant future to see its danger. It’s staring us in the face.
Editorials represent the views of the Boston Globe Editorial Board. Follow us @GlobeOpinion.
