Near the end of his opinion on administrative immunity, Chief Justice John G. Roberts Jr. downplayed the concerns of his liberal colleagues, who worried in dissent that the broad protections the Court had given former President Donald J. Trump would make future presidents immune from the law.
Chief Justice Roberts said the real concern was not that immunity would protect the president from punishment for crimes he committed, but that without it, the nation’s rival leaders would be pitted against each other indefinitely.
“The dissent overlooks that it is more likely that the executive branch will eat itself alive by allowing successive presidents to prosecute their predecessors at will,” he wrote.
That dark vision, rightly or wrongly, did not emerge from nowhere: it was presented to the court by Trump’s own lawyers during oral arguments on the immunity issue in April.
The majority of justices said the decision was not just about Trump, but it was impossible to separate it from the possibility of a second Trump presidency, as Trump himself unashamedly pledged on the campaign trail to use the legal system as a weapon of political retaliation against President Biden and other opponents he accuses of unfairly targeting him.
In many ways, the Supreme Court’s decision was a Rorschach test for the justices, revealing what they saw as the greatest immediate threat to American democracy.
For conservatives, the threat is that constant partisan prosecution could limit the president’s ability to make decisions in the country’s best interests.
The chief justice wrote that his primary concern was protecting the president from the danger that fear of prosecution would “deter him from fearfully and impartially discharging the duties of his presidency.”
Liberals, by contrast, feared a monarchical president who might use the enormous power of the office for personal or political gain or other illegitimate purposes, without the legal checks and balances long deemed necessary to ensure accountability.
“We can allow the president to break the law, to use the perks of his office for his own personal gain, and to abuse his public power,” Justice Sonia Sotomayor wrote in a scathing and sometimes sarcastic dissent. “Because if the president knew he might one day be held accountable for breaking the law, he might not be as bold and fearless as we would like to be. That is the message of the majority today.”
Overall, the decision reflects the extent to which the court’s conservative majority, which Trump helped to build, supports his view of politics as an open-ended power struggle and his argument that American leaders will naturally seek to prosecute their rivals.
Trevor Morrison, a professor at New York University Law School, agreed that the Supreme Court’s decision focused not only on what the justices feared for the country’s future, but also on the core principles they held as federal judges.
“They have very different views of the main dangers that each side wants to protect against,” he said, “but they also have contrasting values: the majority doesn’t want the presidency to be undermined by constant prosecutions, while the opposition is concerned about ensuring the rule of law.”
These two differing views on the nature of politics and power were much more than a mere philosophical dispute between the justices: How the Court decides immunity cases could have immediate real-world consequences.
Morrison, for example, imagined what would happen if Trump were re-elected and appointed a compliant attorney general to go after Biden.
“A majority of the court would say that Biden enjoys broad immunity from prosecution,” Morrison said, “but at the same time they would not be able to go after Trump for weaponizing the Justice Department.”
Trump’s lawyers first signaled in court filings that former presidents will be relentlessly pursued by their successors in the future, but they made their position most clear during oral arguments before the court.
That was when D. Jon Sauer, arguing before the justices on behalf of Trump, asked the justices to imagine someone – Trump was not named – suing Biden over his immigration policies.
“Could President Biden one day be charged with attracting illegal immigrants because of his border policies?” Sauer asked.
In answering his own question, Sauer envisioned a world of constant legal sparring that would destroy “the presidency as we know it,” and some of the court’s conservatives seemed to agree that such a world was coming or already here.
For example, Justice Samuel A. Alito Jr. expressed concern that without some form of immunity, former presidents would be extremely vulnerable because their successors could use the courts to go after them after they leave office, which he added could perpetuate a cycle of retaliation and pose dangers to “a stable, democratic society.”
Trump has long argued, without evidence, that Biden and his Democratic allies politicized justice by pursuing him with multiple indictments despite their differences on the campaign trail, but in making these allegations he has never acknowledged the reality that no president has faced more allegations and evidence of wrongdoing than he has.
In their decision, the Supreme Court majority tacitly accepted Trump’s view of himself as a victim of partisan legal wrangling, if only to endorse his vision of a world in which the president ruthlessly uses his power to attack his predecessor.
This dark view is consistent with another long-held belief of the former president: that there are no good people in the world because everyone is corrupt.
In response to this dystopian vision, liberal dissenters, particularly Justice Sotomayor, argued that immunity was not necessary to protect former presidents from partisan prosecution, because that task could be effectively handled by “all of the protections our system offers criminal defendants.”
Justice Sotomayor reminded the conservative majority that indicting a former president is never easy, an argument that seemed consistent with the time and anguish it took to indict Trump and the difficulties prosecutors have since had in pursuing those cases.
Justice Sotomayor said there are checks and balances built in to prevent prosecutors from filing frivolous cases. She cited, for example, the grand jury process, the right to file a motion to dismiss the case, and the burden of proof prosecutors must bear at trial.
But Chief Justice Roberts appeared to downplay suggestions that ordinary legal obstacles could slow investigations by partisan prosecutors tasked with prosecuting political opponents, arguing that immunity is necessary because, by its very nature, it prevents prosecutions from reaching a court of law.
He also appeared to negate the Justice Department’s assurances that “prosecutors and grand juries will not allow political or frivolous prosecutions to proceed in the first place,” in his words, that the department “will not allow political or frivolous prosecutions to proceed in the first place.”
“We do not ordinarily refuse to decide important constitutional questions based on a government’s good faith undertaking,” he wrote.
Maggie Haberman Contributed report.
