After the Supreme Court’s ruling Monday in Trump v. U.S., former White House counsel John Dean wrote that the court had “affirmed” the claim of Dean’s former boss, President Richard Nixon: “When the president does it, that means that it is not illegal.” As a member of the Watergate special prosecution team that brought Nixon to accountability, and won the Supreme Court’s U.S. v. Nixon ruling that the president is not above the law, I agree. And I add: Rest in peace, democracy and the rule of law.
Monday’s 6-3 ruling creates an imperial presidency Nixon would have loved. The opinion means he would not have been forced to resign and would have served out his full term. His use of the Justice Department, CIA, FBI and his White House and campaign staffs as part of a conspiracy to obstruct justice through perjury, hush money and other crimes — all to cover up his role and theirs in a criminal break-in while he was in office — would no longer be a crime.
If this conspiracy is an “official” act, what isn’t?
Worse, Monday’s ruling means that former President Donald Trump cannot be held fully accountable now, and maybe ever, for using his presidential powers in a conspiracy to attempt to overturn a free and fair election.
True, the court does withhold immunity for a president’s purely personal, unofficial conduct while in office. It does not immunize him for conduct before or after he was in office. But it does grant absolute immunity for one category of conduct and presumptive immunity for another category. It requires the prosecution to rebut the presumption of immunity before the charges can be tried by a jury, and it limits the evidence the prosecution can use to do that.
The court grants absolute immunity to conduct it says falls within the president’s “core” constitutional responsibilities. That severely limits what the court held 50 years ago in U.S. v. Nixon, and is unlike anything in our history. That case held a president is not above the law and must be treated as any other citizen. Yet on Monday, the current Supreme Court tossed that reasoning out the window.
Instead, the Trump decision created a subjective standard vulnerable to the court’s whims and ideologies. It held that “Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.” It did so even though those discussions concerned sending letters to states falsely claiming fraud in the 2020 election and urging them to overturn the results. It did so even though special counsel Jack Smith’s indictment lays out how those conversations were part of an overall conspiracy to obstruct a peaceful transfer of power, conduct that was intended to and would have denied all citizens’ votes being counted.
The court did not categorize the other acts alleged in the Jan. 6 special counsel’s indictment, such as the fraudulent slates of electors, as part of the president’s core powers. But the majority declares those actions “at least” presumptively immune, and that the prosecution must rebut that presumption.
A maliciously inclined president will not be constrained by the possibility that a future court might consider his conduct unofficial.
Common sense tells us all these actions were clearly the acts of a candidate, not legitimate uses of presidential authority. If this conspiracy is an “official” act, what isn’t? If the Supreme Court can conclude that Trump’s alleged pressuring of the Justice Department is immune, why don’t they also say whether Trump’s calls to Georgia’s secretary of state or his pressuring of Vice President Mike Pence and others are also immune? Why is it necessary to hand the issue to the lower courts when those acts seem to almost everyone definitively unofficial and prosecutable?
These should not be open questions. If former President Trump gets a second term, he and his administration will feel safe in acting with abandon. There will be no guardrails.
A maliciously inclined president will not be constrained by the possibility that a future court might consider his conduct unofficial. Nixon would be delighted. This court seems to have found a way to interpret the law and facts here to support the concept espoused by Nixon and his top aides that the ends justify the means and if the president does it, it is not illegal. Worse yet, unlike the opinion in U.S. v Nixon, the court hobbles the prosecutor by limiting the evidence that can be used to rebut the presumption of immunity at a hearing on what allegations remain for trial, as well as limiting the evidence that can be used at trial. That ruling is a gift to Trump’s defense and wholly unnecessary. Federal Rules of Evidence 403 would allow the trial court to make that determination in context of whether its probative value outweighs its prejudicial harm. Monday’s ruling makes it harder to prosecute the most overt of actions even after the prosecution successfully rebuts the presumption of immunity. Finally, Monday’s ruling denies voters a timely ruling on the charges against Trump. Any decision on classifying an act will be appealed to the Circuit Court and then back up to the Supreme Court, leading to delay, delay, delay. The result is, to borrow from Justice Sonia Sotomayor’s dissent, “immune, immune, immune.” As Justice Kentanji Brown Jackson wrote in her dissent, the majority opinion is a “five alarm fire.” Once again the conservative justices, who claim to be originalists and textualists, blatantly ignore what our Founders said. “The President of the United States,” Alexander Hamilton wrote in the Federalist No. 69, “would afterwards be liable to prosecution and punishment in the ordinary course of law.” But the majority has discarded such guidance, because it does not serve their purpose here. Earlier this year, Justice Sotomayor admitted that “there are days that I’ve come to my office … and closed my door and cried. There have been those days. And there are likely to be more.” No one would begrudge her if Monday was one of “those days.” As Sotomayor concluded her powerful rebuttal to the majority, “with fear for our democracy, I dissent.” And so should we all.
Jill Wine-Banks
Jill Wine-Banks is an attorney, author and MSNBC legal analyst. The first woman to serve as US General Counsel of the Army under President Jimmy Carter, she was also one of the prosecutors during the Watergate scandal. 
