Court’s troubling rulings on presidential immunity and regulatory power make it clear that change is an ethical essential
On 1 July 2024, the US supreme court, after an unconscionable half-year delay that it laughably described as “expedited” treatment, handed down Trump v United States, the immunity ruling placing American presidents above the law by deeming the president a “branch of government ... unlike anyone else.” The court’s delay guaranteed that Donald Trump would face the electorate in 2024 without first confronting a jury of his peers instructed to decide, and thus inform voters, whether he was guilty of trying to overthrow the 2020 election.
Famously, the Irish immigrant Thomas Paine advocated that we revolt against the Crown to form an independent country and frame a constitution to prevent the rise of a dictator “who, laying hold of popular disquietudes, may collect together the desperate and the discontented … [and] sweep away the liberties of the continent like a deluge”. To that end, Paine asked: “Where … is the King of America?” And he replied: “In America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.”
In the court’s majority opinion, Chief Justice John G Roberts, Jr betrayed that promise and the Constitution that embodied it. He pretended that granting lifelong immunity from accountability to the nation’s criminal laws didn’t place the president “above the law”. In majestic circularity, he announced that the “President is not above the law” because it is the law itself that implicitly contains that immunity, to preserve “the basic structure of the Constitution from which that law derives”.
But the idea that we need an unbounded chief executive to make the separation of powers work is grounded neither in theory nor in experience and contradicts the axioms of checks and balances. Worse still, the court’s decision delivers not a genuinely unbounded executive but one bound by whatever limits the court itself invents as it fills in the gray areas in its anything but black-and-white ruling. So it’s an imperial judiciary this court delivers in the guise of an imperial executive, not surprising for a court that just last week dismantled the administrative state by substituting itself for the panoply of expert executive agencies in Loper Bright Enterprises v Raimondo.
The three dissenting justices objected, without rebuttal by the majority, that no prior president has needed this novel immunity from generally applicable criminal laws to operate as “an energetic, independent executive”, an objective the court placed above all else. The majority professed worry about “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”. But it said nothing to justify that worry – or to explain how the newly concocted less-than-absolute shield of presidential immunity could hope to solve the problem it conjured. After all, if we elect presidents unprincipled enough to direct their attorneys general to persecute their predecessors on trumped-up charges of abusing their official powers, there’s nothing to stop them from fabricating purely private – and, under the court’s new rule, non-immune – crimes by those predecessors.
Beyond those glaring flaws in the majority’s reasoning, Roberts snidely accused the three dissenting justices of “fear mongering on the basis of extreme hypotheticals” that neither the majority opinion nor either of the two concurring opinions troubled to refute.
What to make of the majority’s confusing instructions to the court trying Trump for the federal crimes through which he is alleged to have sought to overturn the 2020 election and the lawful transfer of power for the first time in our history? Only Justice Amy Coney Barrett, partly concurring and partly dissenting, wrote in no uncertain terms what the majority should have made clear but didn’t: “The President’s alleged attempt to organize alternative slates of electors … is private and therefore not entitled to protection … While Congress has a limited role in that process, see Art II, §1, cls 3-4, the President has none. In short, a President has no legal authority – and thus no official capacity – to influence how the States appoint their electors.” The majority should’ve endorsed Barrett’s brisk conclusion: “I see no plausible argument for barring prosecution of that alleged conduct.”
The majority also offered no cogent reason to disagree with Barrett that, “beyond the limits afforded by executive privilege”, the US constitution doesn’t “limit the introduction of protected conduct as evidence in a criminal prosecution of a President”. As she and the three dissenters persuasively argued, the constitution “does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable” even if it does immunize them from prosecution on the basis of those circumstances. Bribery, a federal crime, makes the point perfectly. It’s nonsensical to hold, as the majority does, that a president who performs an official act like issuing a pardon in return for a bribe may be prosecuted for the bribe but may prevent the jury from learning about the backroom presidential conversations surrounding the pardon. The majority’s rejoinder that the pardon itself may be introduced in evidence as an official record is no answer at all.
Indeed, the whole journey on which the majority embarks is misdirected. As dissenting Justice Ketanji Brown Jackson argued, it’s “cold comfort” to learn that “the President is subject to prosecution in his unofficial capacity … like anyone else”, because the “official-versus-unofficial act distinction” is both “arbitrary and irrational, for it … is when the President commits crimes using his unparalleled official powers that the risks of abuse and autocracy will be most dire”. She is right that vesting the president with uniquely sweeping powers and duties “actually underscores, rather than undermines, the grim stakes of setting the criminal law to the side when the President flexes these very powers”.
I’ll let others sort through the tangled puzzles the court has left in its wake absent meaningful guidelines for distinguishing between the various categories of presidential conduct it enumerates. My main takeaways from this shameful decision are three: first, there is a compelling need for supreme court reform, including a plan to impose an enforceable ethics code and term limits and possibly create several added seats to offset the way Trump as president stacked the court to favor his Maga agenda; second, we should start planning for a constitutional amendment of the sort I have advocated in the New York Times to create a federal prosecutorial arm structurally independent of the presidency; and third, we need a constitutional amendment adding to Article I, Section 9’s ban on titles of nobility and foreign emoluments a provision expressly stating that nothing in the constitution may be construed to confer any immunity from criminal prosecution by reason of a defendant’s having held any office under the United States – and a provision forbidding use of the pardon power to encourage the person pardoned to commit a crime that the president is unable to commit personally.
Amending the constitution to address problems the supreme court creates needn’t take long. When the court prevented Congress from lowering the voting age to 18 in state along with federal elections in Oregon v Mitchell, it took under seven months for us to adopt the 26th amendment to repair that blunder. And the court can overturn its own egregiously wrong decisions quickly, as it did in 1943 when it overturned a 1940 ruling letting states force children to salute the flag against their religious convictions in West Virginia State Board of Education v Barnette. As Justice Felix Frankfurter once wrote: “Wisdom too often never comes, so one ought not to reject it merely because it comes late.” Trump v United States isn’t just unwise. It’s a betrayal of the constitution. Overturning it should be an issue in this November’s election.
Laurence H Tribe is the Carl M Loeb University professor and professor of constitutional law at Harvard Law School