"With Fear for Our Democracy, I Dissent"

The Supreme Court's 6-3 presidential immunity ruling puts the president above the law. The extremist supermajority has strengthened Trump's hand and made a possible second term even more dangerous.

With this ruling, the Supreme Court has almost certainly made sure Donald Trump will not be held accountable for his role in the Jan. 6 insurrection before the election. (Photo by Shay Horse/NurPhoto via Getty Images)

If you had any doubt, if Trump were to win in November, that he would feel free to pursue a fascist dictatorship, unrestricted by law, the Supreme Court now provides such a president absolute immunity to do whatever he wants as long as he calls everything he does official acts.

This Supreme Court has created the conditions for a man like Trump to rule like a king—or more to the point, like a dictator. As lawyer and scholar Neal Katyal, who has argued dozens of cases before the Supreme Court, put it this morning on MSNBC, “This decision today is unfortunately a blueprint for how to end the rule of law.”

And what is to be done with a Court that is bent on strengthening the hand of Trump and enabling him to avoid accountability? Vote in November, up and down the ticket, like America’s survival depends on it. Because it does.

Immediate concerns first: This slow-walked ruling—which asserts that a president possesses “presumptive immunity” for all his “official” acts and only acts determined to be “unofficial” can be prosecuted—almost certainly ensures that there will be no trial related to Trump’s role in the Jan. 6 insurrection before the election on November 5. Judge Tanya Chutkan of the D.C. District Court, who is overseeing the Jan. 6 trial, will now be obliged to assess which of the charges against him can be defined as “unofficial.” And whatever she determines, we can be sure Trump will appeal it, making it virtually impossible that this can all be resolved before the election.

And if Donald Trump were to win this election? You can be sure he will never be prosecuted for his role in inciting a deadly insurrection at the U.S. Capitol on Jan. 6, stealing and abusing classified records at Mar-a-Lago, or conspiring to steal the election by fraud in Georgia. That is a grave misfortune for America, for democracy, for the rule of law, for what has been a fundamental principle in this country that no one is above the law.

While I want to focus mostly on the dissent in this case, read first what Chief Justice John Roberts and Justices Alito, Thomas, Gorsuch, Kavanagh and Barrett ruled in their majority opinion on page one (here’s the entire 119-page document): “Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.”

They go on to say that “Presidential power under the Constitution…requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is entitled to at least presumptive immunity.”

Clearly, their goal is to maximize presidential power and that includes not burdening him by seeking evidence of possible crimes. But how do they argue the necessity of this?

“Criminally prosecuting a President for official conduct undoubtedly poses a far greater threat of intrusion on the authority and functions of the Executive Branch than simply seeking evidence in his possession,” they write, adding that criminal prosecution means “the President would be chilled from taking the ‘bold and unhesitating action’ required of an independent Executive” and “the threat of trial, judgment, and imprisonment is a far greater deterrent and plainly more likely to distort Presidential decisionmaking” and cause “hesitation to execute the duties of his office fearlessly and fairly that might result when a President is making decisions under ‘a pall of potential prosecution.’”

God forbid that a president wouldn’t be free to pursue actions that could be determined by a court as criminal. Why not assume that taking away the threat of prosecution is necessary for a president—or at least one particular ex-president and possible future president—to pursue the job he wants to pursue?

Now let’s turn to the fierce and fearless words of Judge Sonia Sotomayor in her dissenting opinion. It details what this all means and what’s at stake better than I could possibly summarize. These are words to read more than once—and to keep in mind on the day you cast your ballot. In fact, these are words that underline the necessity of motivating others to vote and ensure democracy’s survival.

She begins her dissent like this:

Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. 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. Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent.

And later, after detailing Trump’s “allegedly false claims” of election fraud and his attempts to “exploit the violence and chaos at the Capitol” to pressure lawmakers to delay certification and “ultimately declare him the winner,” she writes:

The Court now confronts a question it has never had to answer in the Nation’s history: Whether a former President enjoys immunity from federal criminal prosecution. The majority thinks he should, and so it invents an atextual, ahistorical, and unjustifiable immunity that puts the President above the law.

She takes great pains to describe what the majority’s ruling means for our country, perhaps with an eye to the reality of a man like Trump re-taking the White House. Allow me to share with you a significant portion of her sobering thoughts. “The long-term consequences of today’s decision are stark,” she asserts, adding:

The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. This new official-acts immunity now ‘lies about like a loaded weapon’ for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation…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. Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.

And she concludes with these chilling, portentous words:

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.

There will be much to say in the days and weeks ahead about this terrible ruling, not only as we see how Judge Chutkan and the other judges responsible for adjudicating what Trump has done respond to it.

I am not a legal expert, but I do know that this decision strengthens the hand of Donald J. Trump, reduces the probability that he will be held accountable, and makes it more likely that our worst-case scenarios about a second Trump term will come true if he is re-elected. We have increasing reason today, as Judge Sotomayor puts it, to “fear for our democracy”—and to do what we can to change the composition of this dangerous Court.

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