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2 July 2024

The Supreme Court has made Trump “a king above the law”

With one decision, the court has created a “law-free zone” around the presidency – and changed the country.

By Katie Stallard

The Supreme Court delivered its historic ruling in the case of Trump vs United States on Monday (1 July), and it was almost everything Donald Trump could possibly have hoped for.

In a 6-3 decision, with the justices divided along ideological lines, the court held that Donald Trump had substantial immunity from prosecution for actions that took place while he was in office. Specifically, the ruling said that presidents had “absolute” immunity when it came to their core constitutional powers, and “at least a presumptive immunity” for other actions within the “outer perimeter of his official responsibility”. There was no protection for unofficial acts. This was necessary, wrote the chief justice John Roberts, for the president to be able to “execute the duties of his office fearlessly and fairly”.

In practical terms, this means that Trump cannot be prosecuted for actions that fall within the president’s “use of official power”. This includes his conversations with senior Justice Department officials after the 2020 election, even when he allegedly pushed them to investigate supposed “election fraud” and threatened to remove the attorney general if they did not. He is also “presumptively immune” from prosecution for his efforts to pressure his vice-president, Mike Pence, to block the certification of the election results in Congress on 6 January.

The court threw out parts of the federal election subversion case against Trump that is currently pending, led by the special prosecutor Jack Smith, and sent it back to the lower courts to decipher the complexities of this ruling and determine whether the remaining charges relate to official or not. This will take so long that there is now little chance the case will go to trial before the presidential election in November. If Trump wins, he will be able to order the Justice Department to drop it.

Naturally, Trump turned on caps lock and took to social media to celebrate the result. “BIG WIN FOR OUR CONSTITUTION AND DEMOCRACY,” he wrote on Truth Social. “PROUD TO BE AN AMERICAN.”

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It was a vindication of the Trump team’s “delay, delay, delay” strategy to the multiple criminal cases he faces. He is scheduled to be sentenced on 11 July in New York after being found guilty on 34 felony counts in his hush-money trial. But his lawyers have already written to the judge in that case, Juan Merchan, asking him to set aside the conviction and delay sentencing while he considers the implications of the Supreme Court’s ruling, which they argue could render some evidence inadmissible. None of the other cases are expected to be tried before November.

Many observers will also view the ruling as the logical conclusion of the former president’s efforts, along with the then Senate leader Mitch McConnell, to pack the court with conservatives, adding three such justices – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – to the bench during his four-year term. Public trust in the Supreme Court was already at an all-time low, with just 28 per cent of Americans saying that they believed Supreme Court justices would be fair and impartial in a June poll by Associated Press-NORC Center for Public Affairs Research. Along with the decision to overturn Roe vs Wade last year – which had protected the right to an abortion for half a century – this latest decision will only compound the perception among many that this is now an activist court with a conservative agenda. This is particularly concerning given the crucial role the court could play in determining the outcome of a closely contested election this year.

The court’s three remaining liberal justices – Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson – dissented from the ruling in the strongest possible terms, arguing that the decision would fundamentally reshape the institution of the presidency and undermine the foundational principle that no one is above the law. “The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding,” wrote Sotomayor in the dissenting opinion. “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.”

In case that wasn’t stark enough, she laid out explicitly what this could mean. “When [the president] 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.”

It is customary to sign off such opinions, “Respectfully, I dissent.” Instead, Sotomayor signed it: “With fear for our democracy, I dissent.”

[See also: Joe Biden’s last debate]

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