On Monday, the Supreme Court handed down a much-awaited and long-delayed decision in Trump v. United States, testing the former president’s claim to absolute immunity from criminal prosecution for the events surrounding the attack on the Capitol on Jan. 6, 2021. The 6–3 decision, penned by Chief Justice John Roberts and joined by all of the court’s conservatives, broadly expanded the zone of presidential immunity in ways that fundamentally reshape the balance of powers in American government, creating extraordinary new protections for a president who seeks to break the law. As Justice Sonia Sotomayor warned in her dissent, if the president “orders the Navy’s Seal Team 6 to assassinate a political rival,” he is now “insulated from criminal prosecution.” The “relationship between the president and the people he serves,” Sotomayor continued, “has shifted irrevocably in every use of official power. The president is now a king above the law.”
On a Slate Plus bonus episode of Amicus discussing the scope of the decision, Dahlia Lithwick and Mark Joseph Stern were joined by professor Corey Brettschneider, who teaches constitutional law and political theory at Brown University and is the author of the new book The Presidents and the People: Five Leaders Who Threatened Democracy and the Citizens Who Fought to Defend It. Their conversation has been edited and condensed for clarity.
Dahlia Lithwick: This opinion is a game changer, but the chief justice characteristically tried to make it sound modest. The majority opinion as penned by the chief justice differentiates between criminal acts that are official and unofficial acts. Help us understand if the court has a marker of the difference between the two, what that line is, and why it matters.
Mark Joseph Stern: I don’t see how the trial court can apply this decision with any modicum of certainty or consistency. Because what Roberts has delivered is a Ziploc bag full of muddy water. I think that’s the whole point. In practice, this is just going to mean that anytime the president says “I was doing that pursuant to my constitutional authority,” the courts are going to grant him immunity. As Justice Sonia Sotomayor argues persuasively in her dissent, this new rule is going to prevent prosecutors from charging a president with the crime of manipulating the tools of his office to engage in corruption. Because as long as the president defends himself in line with Roberts’ opinion, that’s not even a crime in the first place.
Lithwick: Corey, the court is drawing all these lines, like “core functions” vs. “outer perimeter,” that make it sound like they’re solving a math problem. Can you help us understand what a sea change this actually is? Because this is not just a Donald Trump story. This is a separation-of-powers story and fundamentally a structural change to democracy as we understand it.
Corey Brettschneider: You know, the court claims that it has this method of originalism that requires us to look at the text of the Constitution as it was originally understood. So you would expect, in a monumental decision like this—granting immunity to a former president’s “official acts”—that the Constitution would say something about presidential immunity. But it doesn’t. There was a disagreement at the founding about this: John Adams, for instance, defended the idea that presidents are immune from prosecution, which suits his disposition toward an aggrandized idea of presidential power. On the other side, though, there was James Wilson; at the Pennsylvania ratifying convention, he said the thing that we thought defined our Constitution until Monday—that no person, not even a president, is above the law, and the president can be prosecuted.
So it’s not like there was some universal understanding of presidential immunity at the founding. There’s no textual evidence in the Constitution. The Framers just disagreed when they talked about this issue. So the idea that this is based on originalism is false. And the main precedent they do rely on, Nixon v. Fitzgerald, gets extended way beyond what it actually said. I’d argue Roberts is saying something contrary to what that case actually said. And we have stronger cases on the other side, like U.S. v. Nixon, which held that a president facing a criminal subpoena is not above the law. They may claim to respect precedent, but they’re not doing it. They may claim to respect text, but they aren’t. And they may claim to respect history, as if the Framers sort of agreed about this, but that’s not true either.
Stern: I love Justice Sotomayor’s two citations to the Dobbs decision in her dissent. She makes the scathing point that “it seems history only matters to this court when it is convenient.” And that’s the whole ballgame. The court will cherry-pick whatever fits its narrative, then ignore everything else. In this instance, it’s especially egregious because the Framers knew how to put immunity in the Constitution—they gave it to members of Congress, after all, but not the president. And now, centuries later, six justices decide they know better than the Framers.
When it came to reproductive autonomy, the conservative justices said, We have to leave this to the people and their representatives—it’s just a matter of policy. But when it comes to making the president a king and undoing the compromises of the Constitutional Convention that established the executive as it existed until Monday morning? All that can be wiped away with a bit of gauzy rhetoric about how important it is to have an “energetic” executive.
Lithwick: Mark and I have spent the past couple months talking about a monarchic Supreme Court that is uncheckable on any front we can discern, and the sense that the uncheckable judiciary is not fully appreciated by the nation. But this move, from a monarchic judicial branch to a monarchic presidency, happens at the speed of light. I’m just thinking about what it means to have a two-headed monarchy in the place of checks and balances. And I’m wondering: After this decision, can the president actually call in SEAL Team Six in order to have a political opponent assassinated and avoid prosecution by saying he was exercising his constitutional authority? Can the president just invoke the Insurrection Act in order to break up a lawful protest? What’s going to constrain this theory of what feels, to me, like unlimited power and zero accountability as long as the president deems it an “official act”?
Brettschneider: Certainly not this court. And that’s what’s so important to get across—this is really about the fundamentals of democracy. We’re talking about the president committing crimes with impunity that threaten the stability of democracy itself. And the presidency has become so powerful that if Trump wins in November, he could use his office to literally destroy democracy.
How do you stop that? You would hope the courts would say that a president who committed a crime can be prosecuted after they leave office. But this Supreme Court has abdicated that responsibility. It has gotten rid of so many checks on the presidency that we took for granted. But we can’t let them have the last word on this. Citizens have got to take the Constitution back. We’ve got to demand legislation that limits the office, and the appointment of justices who see things with common sense. But where we’ve historically been able to push back is through elections. We’ve got to figure out how to make this election a referendum on democracy. Because Trump has now essentially been protected in all things, even as outrageous as a political assassination of his opponent. And no president should be able to do that.
Stern: Can I draw out a point that was implicit in what you just said, Corey? Through Roberts, the majority draws out this distinction between official and unofficial acts as though it’s the most natural thing in the world—like, Of course we wouldn’t want the president to be punished for committing crimes in the course of exercising the duties of his office.
But as Justice Sonia Sotomayor explained in her dissent, the lesson from Nixon is that when presidents use their power to commit official acts in pursuit of a criminal scheme, that is when we should be most concerned about their conduct and most eager for them to face accountability. Because that is when their criminal conduct poses the most heightened threat to democracy. If the president can take this immense power we entrust him with and manipulate it for corrupt ends—knowing he will never face accountability—then we have fundamentally changed the nature of what the presidency is. He is no longer a person who is elected by the people to represent them for four years. He is an emperor who walks into office, surveys his new powers, and gets to decide how to use them for his own corrupt advantage—to enrich himself, to entrench his authority, to prevent the peaceful transition to power, to even execute his rivals. I just think that is exactly the opposite of how the executive power had been understood until Monday morning. And I find myself baffled that six justices would say that presidential accountability is now constitutionally prohibited rather than constitutionally required.