In a ruling that splits the legal hair rather decisively, the United States Supreme Court on Monday declared that while the President of the United States is not entirely above the law, he is apparently able to climb well above it for the duration of his official duties. The 6-3 decision, upheld by the Court’s conservative majority, stated that former presidents enjoy absolute immunity from prosecution for actions within their constitutional powers and at least a healthy dollop of presumed immunity for everything else that happens to occur while they are on the clock.
To be clear, this ruling does not mean that presidents can start launching personal vendettas or bank heists from the Oval Office without eventually answering to a court of law. It does, however, mean any such career diversions may simply be penciled in under the “not today” column if they took place while a president was executing their official duties, however creatively one might define those. Decisions about what counts as “official” now return to the lower courts, who are no doubt thrilled to play legal archeologists on this presidential fossil dig.
Chief Justice John Roberts, writing for the majority, suggested that the president must be allowed to exercise their duties without fear that a subpoena lurks behind every ceremonial ribbon-cutting. In perhaps the only context in which “Do you know who I am?” carries constitutional weight, the Court reminded everyone that prosecuting a president for doing their job, broadly interpreted, could chill the functioning of the executive branch. The dissenting justices, led by Justice Sonia Sotomayor, took a distinctly frostier view, cautioning that the ruling effectively hands a future president something akin to a judicial invisibility cloak, at least until they are out of office or caught on particularly inconvenient audio.
“Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune,” wrote Justice Sotomayor in her dissent. “Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”
This ruling now sends former President Donald Trump’s federal election interference case back to the trial court to determine precisely which of his actions were presidential and which were presidentially adjacent, which may delay an eventual trial well past the next election and possibly several Netflix docuseries about it.
The decision, predictably, drew applause from Trump and his entourage, who celebrated the ruling as confirmation that the presidency is, in legal terms, a sort of part-time diplomatic immunity with full-time benefits. President Joe Biden, in contrast, warned that the Supreme Court had set a perilous precedent that shields the most powerful person in the country from consequences that might otherwise apply to anyone else not licensed to command nuclear weapons.
As the dust settles on this constitutional reshuffling, the country is left with the perplexing notion that a president might one day take office and, for the tenure of their term, become something akin to Schrödinger’s Defendant: legally untouchable until further notice.
Turns out, executive privilege is less coat check and more invisibility cloak.