In a move that has constitutional scholars reaching for stress balls and late twentieth-century history books, the U.S. Supreme Court ruled Monday that former presidents are immune from prosecution for actions deemed “official” while they were in office, a decision that has some Americans wondering if the nation’s highest bench just gave the executive branch a permission slip signed by history itself.
The 6 to 3 ruling, which predictably split along ideological lines because no Supreme Court decision is complete without a little Kabuki theater, arrives courtesy of Chief Justice John Roberts, who clarified that a president cannot be criminally prosecuted for official acts. However, what counts as an “official act” now appears to be subject to more interpretation than your favorite avant-garde art installation.
Roberts wrote that this sweeping immunity exists “to ensure that the president can carry out the duties of his office without undue fear of prosecution” which sounds noble until you remember that this case is about Donald Trump attempting to overturn the 2020 election, a task that most presidential job descriptions tend to leave out.
Justice Sonia Sotomayor, holding a dissent she practically etched with fire, called the ruling “deeply wrong” warning that it effectively gives presidents the legal equivalent of an invisibility cloak when it comes to abuse of power. “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,” she wrote, presumably before ordering a very strong coffee.
This decision sends Trump’s federal election interference case back to the lower courts, which are now tasked with the delightful challenge of separating Trump’s official acts from unofficial ones, an exercise that may rival alchemy in both difficulty and disbelief. Judge Tanya Chutkan must now decide what specific parts of Trump’s attempt to remain in office fell into which bucket. Good luck to her and to all of us.
All this means that with the November election looming like an overcaffeinated specter, any trial for Trump’s federal charges is now stuck in bureaucratic purgatory. As for Trump himself, never one to miss a victory lap, he celebrated the ruling with his usual understated grace by declaring it “a big win for our Constitution and democracy” which is certainly one way to describe it.
And so, the land of the free and the home of lawyers trudges onward, armed with constitutional theory and a baffled expression.
Apparently, legality is now in the eye of the Oval beholder.