There’s been an understandably apocalyptic reaction to Monday’s ruling from the Supreme Court. People are, rightly, horrified by the idea the president of the United States can now act with near-total criminal impunity if their behavior can be described as an “official act.” It’s a notion that cuts against the very fundamental values of this country’s history.
But there’s something we need to keep in mind as the fight to preserve American democracy takes another dark turn: Those of us who believe in the core tenets of liberal democracy and the American experiment can’t prematurely surrender to the worst impulses and machinations of those who want to destroy it. And that means not surrendering to the idea that if Donald Trump is re-elected, it will automatically be the end of democracy as we know it.
Those of us who believe in the core tenets of liberal democracy and the American experiment can’t prematurely surrender.
I know that the stakes are extremely high. I have zero illusions about what Trump, the right, and the entire Republican Party would do to our democracy given the opportunity. But I also refuse to concede in advance to that worst-case scenario. We are still a constitutional republic. We, the people, still get a say in what we will and will not accept. It is up to us to say what this society looks like and what democracy looks like.
Six zealots on the Supreme Court may say that the president can act with near immunity for any number of corrupt acts, but there is still a rule of law in this country. And we, as Americans, still know right from wrong even in the worst-case scenario.
To invoke the frequently cited example, this decision may very well mean that Trump would have prosecutorial immunity if he ordered SEAL Team Six to assassinate someone — the court’s liberals said as much in their dissents. And this conservative majority might agree that’s the case, but that does not make such an order legal and certainly does not make it right.
Nearly 150 years ago, The Posse Comitatus Act made it illegal for the president to unilaterally weaponize federal troops to intervene in issues of civilian affairs. The court’s ruling doesn’t erase that law.
Everyone understands that having SEAL Team Six assassinate a political rival for personal reasons would be murder. We all get that; it would be an illegal order. And we have reason to hope in that situation, the guardrails stay in place.
In 2022, Trump’s Secretary of Defense Mark Esper spoke to CBS’s “60 Minutes” about how, two years earlier, the then-president wanted to turn the military loose on protesters:
“He’s gonna finally give a direct order to deploy paratroopers into the streets of Washington, D.C., and I’m thinking with weapons and bayonets and this would be horrible,” Esper said. “He says ‘Can’t you just shoot them? Just shoot them in the legs or something?’ And he’s suggesting that’s what we should do, that we should bring in the troops and shoot the protesters.” We need to reinforce the notion that we answer to the Constitution, not the president. That didn’t happen — not because of any understanding about Trump’s potential criminal exposure — but because everyone around him, including Esper, knew it was unlawful and wrong. When it comes to the many horrifying implications of the Supreme Court’s immunity decision, we must work to ensure that Constitutional culture in this country is strong enough to reign in the worst impulses of a potential second Trump administration. I know that may sound naive and I know there are many folks out there who will disagree with me. But if Trump wins another term, we need the Mark Espers of the world to refuse to carry out his worst impulses. We need to reinforce the notion that we answer to the Constitution, not the president. But conceding, in advance, that Trump is now free to end American democracy as a whole is a lot like giving him permission to do it. And I for one refuse to give him that. This is an adapted excerpt from the July 2 episode of “All in with Chris Hayes”
Chris Hayes hosts “All In with Chris Hayes” at 8 p.m. ET Tuesday through Friday on MS NOW. He is the editor-at-large at The Nation. A former fellow at Harvard University’s Edmond J. Safra Foundation Center for Ethics, Hayes was a Bernard Schwartz Fellow at the New America Foundation. His latest book is “The Sirens’ Call: How Attention Became the World’s Most Endangered Resource” (Penguin Press).
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