On July 1, 2024, the U.S. Supreme Court declared that the U.S. president is above the law.
In Trump v. United States, the Supreme Court was presented with the specifics of the case against former President Donald Trump for his alleged attempts to overturn the results of the 2020 presidential election and inciting an insurrection on the U.S. Capitol on January 6, 2020. Rather than use this opportunity to affirm the nation’s founding principle that a president is not a king and that no one is above the law, the far right-wing supermajority of the court rejected that foundational idea. Instead, the court radically expanded the powers of U.S. presidents—allowing them to use “official acts” to shield illegal actions from prosecution—and laid the foundation for authoritarianism in America.
The majority of the court in Trump v. United States granted all presidents absolute immunity from criminal prosecution for official acts that are “core” to the presidency, which the justices broadly defined as powers not generally shared with Congress, such as issuing pardons; appointing and removing executive officials; or issuing vetoes. The court also ruled that a president is entitled to a presumption of immunity for other official acts and a prosecutor may only overcome that presumption by showing that the “criminal prohibition of the act would pose no dangers of intrusion on the authority and function of the executive branch.” In plain English, that is a very high bar for a prosecutor to clear, allowing a president to also commit crimes in their broad role as commander in chief and their oath to “take care” to faithfully execute laws.
The Supreme Court has created a permission structure to morph the presidency—with its constitutional checks and balances—into a dictatorship allowing crimes to be committed with impunity in the name of official duties as an executive. Based on the majority opinion, a president would have absolute immunity to sell pardons; accept bribes in exchange for vetoing legislation; poison their own attorney general; obstruct investigations by directing allies within DOJ; or target political opponents using federal agencies.
The following are examples of presidential actions plausibly covered by immunity under this decision:
- **Selling Pardons**: The majority granted absolute immunity from criminal prosecution for exercising “core constitutional powers,” including granting reprieves and pardons for offenses against federal laws.
- **Accepting Bribes for Vetoes**: According to Article II's mandate on veto power, presidents would have absolute immunity from prosecution related to bribery or other illegal activities when issuing vetoes.
- **Removing Executive Officers**: Justice Ketanji Brown Jackson highlighted concerns about whether poisoning an attorney general falls under presidential removal powers.
- **Using DOJ Politically**: The decision undermines DOJ's historical independence by establishing absolute discretion for presidents over prosecutorial decisions.
- **National Security Powers**: Broad interpretations allow potentially illegal military deployments or surveillance justified as national security measures.
- **Assassinating Political Rivals**: Hypothetical scenarios discussed include using military force against political rivals without fear of prosecution.
This list is non-exhaustive and focuses on examples raised by justices themselves:
- Misusing DOJ or other entities in elections
- Violating nepotism laws
- Silencing protests through military deployment
- Allocating federal funds based on loyalty
- Punishing whistleblowers
- Ordering IRS audits against opponents
This shift in executive power poses significant risks to American democracy under any president. In response, President Joe Biden called for a constitutional amendment prohibiting blanket immunity granted by this decision. Additionally, there are calls for Supreme Court reforms including term limits and binding ethics codes.
