This is part of Opinionpalooza, Slate’s coverage of the major decisions from the Supreme Court this June. Alongside Amicus, we kicked things off this year by explaining How Originalism Ate the Law. The best way to support our work is by joining Slate Plus. (If you are already a member, consider a donation or merch!)
We weren’t cynical enough. Prior to the oral argument in Trump v. United States, we wrote in Slate that only the most cynical could believe that the Supreme Court of the United States would hold that a president can use his official powers to violate generally applicable criminal law. But on Monday, in a stunning 6–3 decision written by Chief Justice John Roberts, the six Republican appointees decided just that. The president—when exercising his official duties—is immune from criminal prosecution.
For any criminally inclined chief executive, the court put the cherry on top of the sundae by directing lower courts to interpret the scope of “official duty” very broadly and stating that, no matter the charged crime, a trial court may not allow a jury to even hear of a president’s criminal actions if they fall within the broad and indeterminate category of “official” conduct.
This amounts to a form of absolute immunity unheard of in criminal law. The court has now effectively placed the president above the law, no matter the chief justice’s protestations otherwise. Richard Nixon could only have dreamed of such a ruling. However sadistic the purpose, however outrageous the conduct, it’s not a crime if the president does it. “Officially” direct a drone strike on a political rival: not a crime. Send federal troops to gun down peaceful protesters in Chicago: not a crime. Have the FBI seize voting machines in Philadelphia: not a crime. Permit foreign agents to kidnap a troublesome House member or governor from their home: not a crime. As Justice Sotomayor says in a fearful dissent: “The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding.”
Trump has loudly advertised his authoritarian ambitions. He has said that he will be a dictator, but only on Day 1. He has promised to turn the entire executive branch into his instrument of personal vengeance. Once respectable right-leaning think tanks like the Heritage Foundation, with their 2025 plan, are creating both the administrative infrastructure and (more importantly) lists of personnel to populate a one-party dictatorship.
Ironically, the court’s ruling depends entirely on the assumption of the good behavior of the current president, Joe Biden. It’s as if the Supreme Court cannot imagine that Joe Biden would—for example—instruct the Justice Department to arrest members of the Supreme Court for corruption and then crow triumphantly about it on social media. Or that Joe Biden would announce that he was sending a detachment of armored cavalry to supervise the elections in the red counties of Wisconsin, Michigan, and Arizona in November. Or that he would declare a “state of emergency” in the nation’s capital to prevent a quorum of the Congress from meeting to certify the electoral votes.
The court has written an opinion for a president who respects limits. It’s a tacit recognition that the current occupant of the White House will not abuse his power to remain in power. But, in a further irony, the court has done so in a case that exists only because on Jan. 6, 2021, President Trump demonstrated that he respects no limits and would do anything—even break the law—to remain president. The majority worries about reciprocal criminal prosecutions of elected leaders once there’s a peaceful transfer of power. But if the chief executive can officially engineer his permanent succession without any consequences, one need not worry about a tit-for-tat cycle of “factionalist” prosecutions of former presidents.
Because the difference between a president and a despot now is almost entirely dependent on the character of the person in the Oval Office, the Supreme Court has crystalized the choice this election—American democracy and the rule of law are on the ballot come November. Perhaps more terrifyingly, this will be true of every future election. Whether we can continue to hold free and fair elections depends on November’s result, and has become far more uncertain after this shockingly authoritarian-friendly decision.