High Court’s Immunity Case Protects the President, Not Democracy

Trump v. United States is a historic decision by the US Supreme Court. It will likely come to be regarded as a mistake of historic proportions.

In its 6-3 ruling, the Supreme Court gave presidents significant immunity from criminal prosecution for “official acts” taken in office. In doing so, the conservative majority demonstrated it doesn’t live in the real world occupied by (most of) the rest of us.

Executive power is vast. It has been growing since the dawn of the 20th century to an extent that our Constitution’s framers and ratifiers never imagined—and likely wouldn’t have accepted. In the real world, a significant threat to the stability and continued viability of American democracy comes from the president, who—unlike Congress or the courts—possesses substantial powers to act unilaterally both domestically and internationally.

Yet in the hypothetical world occupied by the court’s conservative justices, there is reason to fear that holding former presidents responsible for violating federal criminal laws will make them too fearful to competently execute their responsibilities. In this hypothetical world, it is asking too much of presidents not to conduct themselves like criminals.

In the real world, then-President Donald Trump sought to overturn the 2020 election results in multiple ways over a period of months, culminating in his encouraging of the storming of the Capitol on Jan. 6, 2021, to stop the lawful process of certification of the election by violence. He refused to do what every president before him did after losing a fundamentally free and fair election: accept defeat and facilitate a peaceful transfer of power.

Yet in the Supreme Court’s hypothetical world, the ugly, terrifying facts of Trump’s role in creating and exacerbating the attack on the Capitol aren’t a matter of grave concern. For the court, the grave concern is “an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next,” as Chief Justice John Roberts wrote for the majority.

In the real world, Trump’s behavior in office was extraordinary. That is why he is being prosecuted in unprecedented fashion in multiple federal and state courts.

To the court’s majority, Trump’s behavior in office was apparently ordinary, and the extraordinary, unprecedented thing is the fact that he is being prosecuted. In his opinion, Roberts described the facts of Jan. 6 like he was writing a weather report. He reserved the term “unprecedented” for his description of the “nature of this case” and the “momentous questions” it raises “about the powers of the President.”

In his concurring opinion, Justice Clarence Thomas—who participated in the case even though his spouse was personally involved in the push to overturn the election results—referred to the prosecution as “extraordinary,” not to Trump’s egregious misbehavior in office.

The court protests too much in announcing that the “President is not above the law.” Given this decision, it would be more accurate for the court to have said “the President is not above the law—kind of, or at least not completely yet, but the deterrent effect of potential criminal liability for misconduct in office has been largely eliminated.”

Is there a silver lining for Americans who fear abuses of executive power, especially in the hands of a future president who might seek to entrench himself in power?

Perhaps. It should now be clear to American voters that the Supreme Court won’t save the country from such a president. In Trump v. United States, the court has made plain that it is up to the voters—those in the real world—to protect the Constitution, American democracy, rule of law, and the existence and relevance of truth.

The case is Trump v. United States, U.S., No. 23-939, decided 7/1/24.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Neil Siegel is professor of law and political science at Duke Law School.

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