On May 19, 1977, millions of Americans tuned in to watch an installment of David Frost’s multipart interview with former President Richard Nixon. This was nearly three years after the Republican was forced to resign in disgrace, and public interest in Nixon and the Watergate scandal remained high.
Viewers to the third part of the Frost/Nixon Q&A saw the former president deliver one of the most memorable political claims of the generation: “When the president does it, that means it is not illegal.”
For nearly a half-century, Nixon’s claim has stood as a classic example of political and legal radicalism. In the United States, no one is above the law, and the idea that a president’s official actions, by definition, are legal — even when they’re not — represented obvious madness.
Indeed, it’s not as if there was a spirited public conversation in 1977 about whether or not Nixon was correct. He plainly was not. The former president’s assertion, nearly five decades later, still seems shocking, dangerous, and in a rather literal sense, un-American.
Alas, Republican Supreme Court justices have come to the conclusion that Nixon was onto to something. In a 6-3 ruling in Trump v. U.S. — an oddly fitting case name, given the circumstances — the high court’s dominant far-right majority concluded that some of Donald Trump’s efforts to overturn his 2020 defeat are immune from criminal prosecution. As my MSNBC colleague Jordan Rubin explained:
In the majority opinion by Chief Justice John Roberts, the court said former presidents are entitled to “absolute immunity” from criminal prosecution for actions within their conclusive and preclusive constitutional authority. Former presidents, Roberts wrote, are entitled to at least presumptive immunity from prosecution for all their official acts. There is no immunity for unofficial acts, the court said.
It’s notable that the court’s GOP-appointed members chose to issue the decision the same week as the Fourth of July holiday — an occasion in which Americans have traditionally celebrated the time when we forcefully rejected the idea that we would be ruled by an unaccountable king.
In terms of the practical implications, special counsel Jack Smith’s election-related case now returns to the district court, which as Rubin’s report explained, will begin trying to determine whether Trump’s alleged misconduct included official or unofficial acts, “which will likely add further delay to the case, making it even more unlikely to go to trial before the November election.”
To put it mildly, few saw this coming. In fact, it was widely assumed that Trump would lose the case, but the defeat would be inconsequential because the Supreme Court ran out the clock, ensuring that the presumptive GOP nominee’s case wouldn’t go to trial before Election Day 2024. This, many observers assumed, was the real scandal.
As regular readers might recall, it was easy to argue that the litigation was hardly a real case to begin with. Trump’s lawyers, desperate to delay the legal proceedings, appeared to concoct a bizarre legal claim as a transparent stalling tactic.
To the extent that this ever was a legitimate question, it was answered emphatically by the D.C. Circuit Court of Appeals, which issued a unanimous ruling in February.
“It would be a striking paradox if the president, who alone is vested with the constitutional duty to take care that the laws be faithfully executed, were the sole officer capable of defying those laws with impunity,” the judges concluded, adding, “We cannot accept that the office of the presidency places its former occupants above the law for all time thereafter.”
The D.C. Circuit went on to describe Trump’s position as “irrational,” adding that under the Republican’s preferred approach, presidents would be “free to commit all manner of crimes with impunity.”
As hard as it is to believe, six sitting justices disagreed.
“Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency,” Justice Sonia Sotomayor wrote in her dissent. “It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. Relying on little more than its own misguided wisdom about the need for ‘bold and unhesitating action’ by the President … the Court gives former President Trump all the immunity he asked for and more.”
The progressive jurist added, “The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, 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 onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.
“Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.”
Sotomayor concluded, “Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop. With fear for our democracy, I dissent.”
The stakes were already high in the 2024 presidential race. The Supreme Court just upped the ante: Donald Trump — a man who has repeatedly raised the prospect of creating a temporary American “dictatorship,” and who has talked about “terminating” parts of the U.S. Constitution that stand in the way of his ambitions — learned today that he enjoys at least some immunity from prosecution, no matter how obvious his alleged crimes might be.
What a terrifying day this is.
