By Mayank Chhaya-
Does the United States now effectively have a king above the law in president? Yes, going by what Justice Sonia Sotomayor has written in a dissenting opinion against the majority ruling granting former President Donald Trump considerable immunity today.
“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,” the six conservative justices ruled in the case that is at the heart of the January 6, 2021, attack on the Capitol by Trump’s supporters.
A federal grand jury had indicted former Trump on four counts for conduct that occurred during his Presidency following the November 2020 election. The Supreme Court order issued today noted that, “The indictment alleged that after losing that election, Trump conspired to overturn it by spreading knowingly false claims of election fraud to obstruct the collecting, counting, and certifying of the election results.”
It also pointed out that “Trump moved to dismiss the indictment based on Presidential immunity, arguing that a President has absolute immunity from criminal prosecution for actions performed within the outer perimeter of his official responsibilities, and that the indictment’s allegations fell within the core of his official duties.”
“This case is the first criminal prosecution in our Nation’s history of a former President for actions taken during his Presidency. Determining whether and under what circumstances such a prosecution may proceed requires careful assessment of the scope of Presidential power under the Constitution. The nature of that power 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,” the majority of 6-3 ruled.
With that, the January 6 case and within that the specific issue of presidential immunity now rests on what constitutes official acts and what constitutes unofficial acts. The six justices did make a specific reference to it saying, “The first step in deciding whether a former President is entitled to immunity from a particular prosecution is to distinguish his official from unofficial actions. In this case, no court thus far has drawn that distinction, in general or with respect to the conduct alleged in particular. It is therefore incumbent upon the Court to be mindful that it is “a court of final review and not first view.”
As widely noted, the ruling is now expected to delay the January 6 trial, likely beyond the November presidential election. If Trump wins the election, it is more or less a foregone conclusion that he would order the case be closed.
This is a dramatically partisan ruling by a conservative majority that at least seems ideologically predisposed towards helping the former president.
In a stinging dissent, Sotomayor wrote, “The court effectively creates a law-free zone around the president, upsetting the status quo that has existed since the founding.” She was joined by the other two Democratic appointees, Justices Elena Kagan and Ketanji Brown Jackson.
The six conservative Supreme Court justices are John G. Roberts, Clarence Thomas, Samuel Alito, Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett. Of these Gorsuch, Kavanaugh, and Barrett were appointed by Trump.
Quite strikingly Sotomayor wrote, “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.”
She said, “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.”
