“A King Above the Law”: Supreme Court Rules Presidents Have Broad Immunity from Prosecution

AMY GOODMAN: In a historic decision, the Supreme Court ruled on Monday that presidents have broad immunity from prosecution. The ruling extends the delay in the Washington, D.C., criminal case against former President Donald Trump on charges he plotted to overturn the 2020 presidential election, and all but ends prospects he could be tried before the November election. The 6-to-3 ruling by the court’s conservative majority — including the three justices appointed by Trump — marked the first time since the nation’s founding that the Supreme Court has granted any form of presidential immunity from prosecution.

In the majority opinion, Chief Justice John Roberts wrote, quote, “The nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts,” he said.

In a scathing dissent on behalf of the minority, Justice Sonia Sotomayor warned the ruling would make the president above the law. She wrote, quote, “The President of the United States is the most powerful person in the country, and possibly the world. When he 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.” Sotomayor went on to write, “In every use of official power, the President is now a king above the law,” she wrote.

The Supreme Court did not dismiss the indictment alleging Trump illegally schemed to cling to power after he lost the 2020 election, but the ruling still amounts to a major victory for the presumptive Republican presidential nominee. Trump posted in all capital letters on social media after the decision, quote, ”BIG WIN FOR OUR CONSTITUTION AND DEMOCRACY. PROUD TO BE AN AMERICAN!”

Meanwhile, President Biden delivered a nationally televised statement from the White House and criticized the ruling.

PRESIDENT JOE BIDEN: Today’s decision almost certainly means that there are virtually no limits on what a president can do. This is a fundamentally new principle, and it’s a dangerous precedent, because the power of the office will no longer be constrained by the law, even including the Supreme Court of the United States. The only limits will be self-imposed by the president alone.

AMY GOODMAN: The ruling, which came on the last day of the Supreme Court term, narrowed the criminal case against Trump for leading the January 6th insurrection, and returned it to the trial court to determine what’s left of the indictment.

In May, Trump became the first former president to be convicted of a felony in a New York court, when he was found guilty of falsifying business records to cover up a hush money payment to an adult film star during the 2016 presidential election. Citing the Supreme Court ruling on immunity, Trump’s lawyers on Monday asked the New York judge who presided over the hush money trial to set aside the conviction and delay his sentencing, which is scheduled for next week.

For more, we’re joined by two guests. Donald Sherman is the executive director and chief counsel of Citizens for Responsibility and Ethics in Washington, or CREW. He’s joining us from Washington, D.C. And joining us from Superior, Wisconsin, is Lisa Graves, executive director of the policy research group True North Research. From 2002 to 2005, she was chief counsel for nominations for the chairman and then-ranking member of the Senate Judiciary Committee. She previously served as deputy assistant attorney general in the Department of Justice, where she was the staff leader of the Working Group on Judicial Selection.

We welcome you both to Democracy Now! Donald Sherman, let’s begin with you. First, your overall response to the Supreme Court’s final decision this term?

DONALD SHERMAN: Well, it’s chilling. And, you know, as the dissent from Justice Sotomayor laid out, it gives the president of the United States, whoever sits in that chair, broad, sweeping immunity over any criminal acts that that person commits, if they are deemed official acts. But what’s even more insidious is that the majority goes even farther than Trump asked for, in suggesting that Trump’s attempt to have fake electors submit fake documents to overturn our election could also be an official act that is subject to this broad immunity.

So, in one fell swoop, this court has essentially left the American people to the whims of the president of the United States — any president of the United States, but particularly Mr. Trump. And so, we are subject to the whims of whether a president will follow the rule of law and constrain their own power, or whether as, former President Trump has suggested, whether they want to be a dictator for a day or for even longer than that, particularly because the impeachment power is effectively nullified if 33 members — or, 34 senators don’t have the spine to impeach a criminal president while they are in office, as we saw in the aftermath of January 6th.

So, this decision is consistent with a trend that Donald Trump’s engineered court has consistently followed, which are losses for — or, wins, excuse me — wins for corruption, wins for corporations, wins for insurrectionists, and losses for accountability, democracy and the American people. But this decision is by far the worst and most dangerous decision undermining the rule of law in the United States.

JUAN GONZÁLEZ: Donald Sherman, looking back at previous instances where presidents were involved in scandals, I’m wondering what you think this court decision might have meant, for instance, for Richard Nixon’s hush money paid to burglars through his White House counsel, or even the Reagan administration during Iran-Contra, the various officials there who were indicted as a result of criminal acts during the Reagan years.

DONALD SHERMAN: Again, I think this decision gives cover to all manner of presidential sins and criminality. And so, with respect to Nixon, certainly, we wouldn’t have been able to put the Nixon tapes into evidence. And so it’s not just that there’s immunity from prosecution. Again, the court goes above and beyond and limits what evidence a prosecutor can even put in to prove criminality, and removes the intent element, which is essential for proving many crimes.

And so, I think whether it’s Nixon and his illegal activity or Iran-Contra, not only does the decision provide immunity for anything that can, you know, in this court’s estimation, be defined as a sort of core presidential act or an official act, but also it limits the kinds of evidence that can be introduced to prove other — you know, to prove crimes based on unofficial acts.

JUAN GONZÁLEZ: I’d like to bring Lisa Graves into the conversation, executive director of the policy research group True North Research. Your comments on the decision? And also, if you could comment on how long it took the Supreme Court to render a verdict in this case, given how important the case was to the national elections, why they waited weeks and weeks before finally issuing a decision at the very end of their term?

LISA GRAVES: Thank you so much, Juan, for having me on, and thank you, Amy.

This decision is the most reckless and dangerous decision ever issued by the U.S. Supreme Court, because it utterly transforms our country and the rule of law into one that’s optional for whoever is the president of the United States. This decision is not a legitimate decision, in my view. It’s a decision by a faction that dominates the Supreme Court, in part due to appointments by Donald Trump that were improvident and of people who certainly should have recused themselves from this case, namely Clarence Thomas and Samuel Alito.

But it also represents just a glaring example of how out of control this corrupted faction of the Supreme Court is, that they would take this case late, after refusing to take it earlier, last year, when Jack Smith sought review. They took it late. They had it as the last argument they set for the term. And then they sat on it until the very last day. And I believe they did so in order to further delay justice, to delay the prospects of Donald Trump being held accountable for his crimes.

That indictment, that was issued by a grand jury of Americans looking at the law, the criminal law of the United States, was well pleaded, with tremendous and significant evidence of criminality by Donald Trump. And then you had this Supreme Court intervene and slow-walk its resolution, only to introduce a dramatic departure from our very system of checks and balances to cloak the president in immunity that does not exist in the Constitution, never mentioned in the Constitution, and that defies the actual language of the Constitution, that requires the president to be the person who takes an oath to uphold this Constitution and ensure that our laws are faithfully executed. If a president can claim that any illegal act that he’s doing is somehow part of an official act, not only has this court sought to immunize it — this court meaning this faction of the court — but also this faction has asserted that the act itself can’t even be part of an indictment or evidence, which ignores the law of evidence, that basically any evidence of a crime can be admitted to show your criminality.

This does not occur in a vacuum. This occurs in a very real situation, where you can see how this court, the Roberts Court, has put its thumb on the scale of justice to favor Donald Trump, despite the way that he behaved on January 6th and his efforts to overturn the presidential election and our democracy. You can see that because in the Colorado case where a trial court judge in the Supreme Court of Colorado found, based on evidence that they reviewed, that clearly Donald Trump incited that insurrection and sought to overturn the election, that he was barred from being on the ballot in Colorado. The Supreme Court acted quickly to take that case, heard argument quickly and resolved it quickly, because they wanted to ensure that Donald Trump was on the ballot. But when this outlier immunity claim, argued by one of these abortion extremists who works for Trump, claiming, you know, even in response to arguments, that perhaps a Trump — pardon me, perhaps a president could get away with assassinating a political rival by calling it an official act, this court sprung into action in the spring to stop that criminal case from going forward.

And to entertain these egregious and outrageous arguments, and now with John Roberts, with Samuel Alito, Clarence Thomas, Brett Kavanaugh and Neil Gorsuch giving this outrageous notion the blessing of this faction, we stand unmoored from the rule of law in America. And this court must be held accountable. I certainly support every effort to hold it accountable, to reform this court and to restore our democracy from the reckless decision of these men to try to destroy the rule of law in America, while claiming that they didn’t.

And let me just finally say, this is a — these justices, each of them, John Roberts and the others, told Congress, told the American people, when they were facing their confirmation hearings, that no one was above the law. And yet, today — or, actually, yesterday, for Donald Trump, they were willing to set aside that fundamental principle in American law, in our Constitution, that no president is king, and basically give President Trump, retrospectively, king-like powers, and perhaps prospectively. And this comes as Donald Trump has been calling for military prosecution of Liz Cheney, for the political prosecution of his political enemies, and for being, in essence, a dictator on day one, and perhaps many other days, should he be elected president. This could not be a more dangerous and reckless decision by this faction of the U.S. Supreme Court, that truly is out of control.

AMY GOODMAN: I wanted to turn to January 2nd, 2021, Donald Sherman. President Trump repeatedly pressured Georgia’s Republican Secretary of State Brad Raffensperger to change the results of the presidential election in Georgia during an hour-long call. The Washington Post published the audio recording of this stunning conversation in which Trump suggested to Raffensperger — announce that officials recalculated votes. Raffensperger responded to Trump, quote, “The data you have is wrong.” This is an excerpt of the call.

DONALD TRUMP: I just want to find 11,780 votes, which is one more than we have, because we won the state. This is a faulty election result. And honestly, this should go very fast. You should meet tomorrow, because you have a big election coming up, and because of what you’ve done to the president — you know, the people of Georgia know that this was a scam. And because of what you’ve done to the president, a lot of people aren’t going out to vote.

AMY GOODMAN: So, there you have him wanting 11,000 votes found, what he needed to win Georgia. Donald Sherman, would this fall under this immunity?

DONALD SHERMAN: I would argue that it is absolutely outside of this immunity. It’s an unofficial act. It’s a call placed as a candidate as opposed to president of the United States. But again —

AMY GOODMAN: But he was president of the United States.

DONALD SHERMAN: Again, this court has given me no confidence that it would reach the same conclusion. This court, again, went farther than Donald Trump’s lawyers were willing to go in describing what official and unofficial acts were. And as my colleague suggested, in the case that CREW brought in Colorado, this court moved expeditiously and bent over backwards, despite the plain text of the Constitution, to find that Donald Trump — to allow Donald Trump to stay on the ballot, despite the fact that he had engaged in insurrection. And so, I just don’t have any confidence that this court, particularly with its conflicted justices, would reach the conclusion that most reasonable people would, that a candidate, who happens to be president of the United States, on the phone pressuring a state official to find him more votes so that he can stay in power is not an unofficial act and not protected by this immunity. But this court, or, as my colleague said, this faction of the court, has made clear that they are willing to countenance pretty much any abuses of power that Donald Trump has or will commit as president of the United States.

AMY GOODMAN: Lisa Graves, what happens now with the current New York case? Everything is so complicated, obviously, by this decision. The prosecutors were supposed to make a recommendation as of yesterday for the sentence for Donald Trump. He was just found guilty for dozens of felonies. But they didn’t submit that recommendation because of this court decision.

LISA GRAVES: Yes, they’re going to have to review this decision and see if and how it would apply to any of the charges that Donald Trump was convicted on. But as I know your listeners know, that conduct by Donald Trump was occurring before he — predominantly, before he was elected president. And I think it would be extraordinary for — and, of course, we’re in these extraordinary times, but it would be extraordinary for this new ruling by the court to give him, in essence, immunity for actions before he became president. But he certainly took some actions afterward.

Again, this is a circumstance where Trump, in essence, has tried to cloak everything he does as if it were an official act of the president, even that call to Georgia. I don’t think it was. I think that was an act of a candidate. But even then, the fact that we have to parse this — candidate or president? Does the president get to engage in an array of illegal activity because he calls it official? Is it in this so-called perimeter or outer perimeter that John Roberts and this faction have invented, created out of whole cloth, to try to immunize this president?

I am hoping that the judges below, that in New York, in D.C. and in Georgia, they will find a way to ensure that these criminal charges, and the criminal convictions in New York, in particular, stand, despite this reckless and outlandish decision by the court. But we’ll have to see. In the case of D.C., the judge, the trial judge, Chutkan, is going to have to review every single part of that indictment against this ruling by this faction. But that judicial process, I think, occurs in one zone.

And for the American people, I think we have to take seriously the fact that we have to protect our democracy from any president whom we could not trust to assiduously follow the law. Any person who seeks office who would try to use that office to punish their political enemies — I’m just going to say this in my personal capacity — is not fit for this office, given the new ground rules that this faction has attempted to set. And I look forward to the day in which this decision is repudiated and reversed for the reckless and lawless standard that it has set for presidents of the United States. And until then, we have to ensure that any person elected president does not have that criminal instinct that Donald Trump has already been convicted of having.

JUAN GONZÁLEZ: Yeah, and I’d like to ask Donald Sherman: The impact of the first Trump presidency and a possible second Trump presidency on the country’s judicial system, given, as we’ve mentioned, that he named three Supreme Court justices, as well as 231 judges to the lower federal courts, almost all of them coming from a list created by Leonard Leo of the right-wing Federalist Society? What do you suspect would happen in a second Trump presidency?

DONALD SHERMAN: Well, I think this disastrous decision is emblematic of it. Again, as we saw during the Trump term, many of his most dangerous ethical and legal abuses were thwarted by federal judges, including at the Supreme Court, where there was a sort of 5-to-4 group that included Chief Justice Roberts and the four liberals at the time. And, you know, I think in a second Trump term, one, there will be a 6-to-3 conservative majority that has already demonstrated that they don’t care about ethics as it applies to themselves and has just given the president of the United States carte blanche to commit crimes, if they are somehow arguably within the president’s official capacities. And so, the checks and balances that existed and prevented the worst abuses in the first Trump presidency are no longer there.

And, in fact, the Supreme Court, engineered by Trump and Leo and the Koch network, has announced to the world that presidents are immune from criminal prosecution. So, there’s no universe where the expectations and the threat — the expectations aren’t worse, and the threat is not substantially greater, if Trump assumes the presidency again, or if any president or if any person with criminal or dictatorial impulses assumes the presidency in the future.

AMY GOODMAN: Well, we want to thank you, Donald Sherman, executive director of CREW — that’s Citizens for Responsibility and Ethics in Washington — and Lisa Graves, executive director of True North Research, joining us from Superior, Michigan.

Next up, 64 years ago this week, Patrice Lumumba gave a historic speech to mark the Congo’s independence from Belgium. We’ll speak with Vijay Prashad, director of the Tricontinental: Institute for Social Research. Vijay also just visited the world-renowned intellectual Noam Chomsky in Brazil. Noam had a stroke last year. When Vijay was with him, Brazilian President Lula also stopped by. We’ll talk about everything, from Congo to professor Chomsky. Stay with us.