by Isaac Kim (PVPHS / 10th Grade)
The Supreme Court is poised to rule against democracy.
On April 26, the Roberts Court heard arguments on Donald Trump’s claim that he is legally immune from prosecution after leaving office. Most people expected to see the Court, which currently has a conservative majority in the docket, to decisively rule against his claim that former presidents are immune to criminal prosecution.
Instead, America has been surprised with what appears to be the total opposite: not only is the Court treating the question of “should the law apply to everyone?” as if it is a fiendishly difficult problem, but it is poised to rule in favor of Trump, conceding to the legally dubious claim that the president cannot be criminally prosecuted after he leaves office. (This is a distinction from civil lawsuits arising from non-official acts and which presidents enjoy at least some immunity from.)
The arguments made before the court by D. John Sauer, Donald Trump’s lawyer, are dubious claims at best and mind-bending feats of logic at worst. According to Mr. Sauer, a president ought to be immune from prosecution for actions such as selling nuclear secrets, employing the military to assassinate political rivals, and launching coups. That last part is especially worrying - Trump v. United States mainly hinges on this issue, where many observers have described the former president’s actions in 2021 as attempting or inciting insurrection against the government - and it is especially worrying that Mr. Sauer brazenly doubled down on actions such as these. When Justice Sonya Sotomayor, for instance, brought up the issue of assassinating political rivals, Mr. Sauer responded by saying, “That could well be an official act” (Trump v. United States 9).
Equally worrying is the ease with which certain conservative justices of the Court agreed with such feats of logic. Justice Samuel Alito notably seems to agree, arguing that “A stable democratic society requires that a candidate who loses an election, even a close one, even a hotly contested one, leave office peacefully… will [presidential prosecution] not lead us into a cycle that destabilizes the functioning of our country as a democracy?” (Trump v. United States 111).
Justice Alito has it backward: even ignoring the underlying irony of Trump asserting that the president is free from criminal prosecution while simultaneously threatening such prosecution against his opponents, the argument that presidents cannot act properly under the threat of such prosecution defies both logic and the law.
After all, as Michael Silk writes in The New York Times, “there is perhaps no greater deterrent to a president who has lost an election refusing to leave peacefully than… criminal prosecution” (Silk 24). If the president was immune from actions undertaken when he was in office, does that, legally speaking, excuse the internment camps of WWII under FDR, or the Watergate scandals under Nixon? And, if the president alone is immune for his actions, what does that say about the Court’s motto, inscribed in the pediment of its building: “Equal Justice Under Law”?
Especially startling was, as Professor Michael Dorf puts it, “the apparent lack of self-awareness on the part of some of the conservative justices” (Liptak 24). It is bitterly ironic that conservative justices of the Court fret over nebulous hypothetical presidents of the future holding on to power by escaping legal prosecution while allowing a former president to hold on to power by escaping legal prosecution, at the same time. Indeed, there seems to be a relentless attempt by conservative justices to blatantly ignore the facts of the case at hand; “I’m not discussing the particular facts of this case,” Justice Alito declared (Trump v. United States 99).
“What struck me most… was the relentless efforts by several of the justices on the conservative side not to focus on, consider or even acknowledge the facts of the actual case in front of them,” writes Professor Pamela Karlan (Liptak 24). No question about it now: the conservatives of the Roberts Court are siding with Trump, and they are doing so by ignoring Trump’s actual actions in favor of deciding in the realm of legalese, spinning the issue of presidential immunity as if it is a Gordian Knot, a question dictated by “what if”s and “unless”s. Context-dependent, as Mr. Sauer argues. It is not. The law applies to everyone: that’s what the point of the law is, that no one, not even the most powerful man on Earth, is above the law.
But this is not the case for the conservative majority of the Court, who, in the words of Ian Millhiser, “completely ignored the risk that an un-prosecutable president might behave like a tyrant” while simultaneously defending such immunity (Millhiser 24). Ruling in favor of Trump - a decision that the Court is poised to uphold, seeming “ready to offer some protections from criminal prosecution” (Beitsch & Schonfeld 24).
The implications of such a ruling go without saying. Should the Court rule in favor of Trump, agreeing that presidents are absolutely immune from actions taken in office, it would imply that presidents are allowed to get away with virtually anything while exercising executive authority. Under Mr. Sauer’s interpretation, that means anything from attempting a coup with military force to assassinating political rivals, from selling national security secrets to foreign powers to theft, embezzlement, and a thousand other potential crimes. “The entire corpus of federal criminal law,” said Michael Dreeben, a counselor for the prosecution, “would all be off limits if it were taken to the total to the extent that some of the questions have suggested” (Beitsch & Schonfeld 24).
Within the nebulous plane of legal hypotheticals and quandaries, such dizzying defiances of logic might justify the preposterous claim that a president is excused from any crime at all as long as Congress doesn’t find out about it. But in the real world, one where certain people have brazenly attempted to steal elections and cynically hold on to executive power, “it’s really hard to imagine a ‘stable democratic society’... where someone who did what Donald Trump is alleged to have done leading up to Jan. 6 faces no criminal consequences for his acts” (Liptak 24). Legal parameters exist for a reason: they help keep a democratic, stable, and free society upright. And these parameters, especially those limiting the executive, are crumbling.
Justice Ketanji Brown Jackson is right when she says that “we would have a really significant opposite problem if … someone with those kinds of powers… could go into office knowing that there would be no potential penalty for committing crimes” (Trump v. United States 62). Because if the highest Court of the land agrees that presidents are not guilty of crimes if the rest of the government doesn’t find out about them, if it says that presidents are immune from any criminal prosecution for a myriad of federal crimes (all of them, in fact), if it says that the president is free to stand above the law…
What makes a president different from a king?
