The US supreme court found this week that former presidents have presumptive immunity from prosecution for “official acts”. This ruling doesn’t just place Donald Trump above the law. The true danger of the opinion is that it could protect precisely the kind of official acts that might destroy the American republic itself.
The origin of the idea that the official acts of a president are immune from prosecution is found in a case about a fired whistleblower. In 1970, President Richard Nixon fired A Ernest Fitzgerald, an air force management analyst, in retaliation for his publicizing information about cost overruns. Fitzgerald brought a civil suit against Nixon, seeking damages for his dismissal. The supreme court sided with Nixon, granting the president absolute immunity from “damages liability predicated on his official acts”.
The court of that time defined “official acts” as those associated with the president’s duties under article II of the constitution, including the duty to “take care that the laws are faithfully executed”. It asserted immunity even for presidential acts within the “outer perimeter” of this duty. However, in this case the court was focused on insulating a president from worries about his financial liability so that he could more easily make decisions about everyday matters of governance, such as hiring and firing.
The supreme court did not then define these official acts to include criminal acts by a president. In fact, its narrow decision precluded only the “particular private remedy” of a civil suit against a former president and even included a pledge to not “place a president above the law”.
This week’s ruling grossly misconstrued the Fitzgerald decision, disregarding this pledge. Instead, it extended an opinion about immunity from civil damages suits to encompass criminal immunity for acts antithetical to the president’s duty to “take care”. The danger of immunity for criminal “official” action is that it protects the enormous power of the president when it is used for the most nefarious political ends, threatening the very existence of democracy.
Consider Justice Sonia Sotomayor’s warning in her thunderous dissent that the decision could protect a president attempting to use the military to illegally retain power after losing an election, what political scientists call a “self-coup”. No courts should incentivize actions that could threaten the very stability of the republic.
Yet that is precisely the kind of act the court has potentially protected – not just during a presidency but after it. While the court left open what counts as an “official act” – and returned the case to a trial court to determine whether the crimes Trump is charged with from January 6 fit this description – the door is now open to impunity for these crimes.
Indeed, the events of January 6 are rightly understood as an attempted self-coup – acts from which the court has now largely shielded Trump from criminal liability. Even if the trial court tasked with hearing the case now decides that Trump’s actions were not “official”, the supreme court’s delay means the process would almost certainly extend past the election. If Trump were to retake power, he would then receive immunity while in office, effectively ensuring he never faces criminal responsibility for these events.
That risk of a presidential self-coup goes beyond Trump. Indeed, it has long been at the heart of the controversy over immunity. As I describe in my new book, The Presidents and the People, released this week, that risk played an unknown but crucial role in the most pivotal moment of the Nixon crisis.
In the midst of Watergate, a grand jury of citizens voted in a straw poll to indict Nixon for associated crimes, but the special prosecutor Leon Jaworski sought to dissuade them from moving forward while Nixon was still in office. As he saw it, presidential immunity was needed to maintain national stability. He argued to the grand jurors that an indictment of Nixon might even prompt a self-coup.
According to the deputy jury foreman, Harold Evans, “Mr Jaworski gave us some very strong arguments why he shouldn’t be indicted, and he gave us the trauma of the country and he’s the commander-in-chief of the armed forces and what happens if he surrounds his White House with his armed forces?”
Jaworski’s rhetorical questions made clear the reasons why it would be dangerous to indict a sitting president. Yet even Jaworski clarified to the grand jury that they were free to indict Nixon after he left office. Only President Gerald Ford’s pardon prevented this. Jaworski’s logic supporting immunity for sitting presidents reinforces why immunity for former presidents is so dangerous. A president who not only committed crimes in office but attempted to cling to power in a self-coup might never face criminal prosecution.
Indeed, this week’s opinion incentivizes behavior like a self-coup by ruling that a president can never be punished for such behavior as long as a court construes it as an official act. Such a president could claim the self-coup was official because it was an attempt to protect the country in an emergency. Trump himself has already falsely claimed his actions on January 6 were an attempt to fight voter fraud, an argument that his lawyers will frame as an official action.
The irony of this week’s opinion is that it allows prosecution for former presidents only in the areas where their power is much less dangerous. In 1872, when President Ulysses Grant was allegedly stopped for a traffic violation, he is said to have paid the fine, though there is historical debate around the incident. Under this week’s ruling, Grant would receive no immunity for such an act, assuming he was speeding on his way to a private function.
While the court was right to deny immunity to private actions like these, private acts are not why the question of immunity matters. The most dangerous acts of a president are those that are official – and those that now potentially receive immunity. At the country’s founding, Patrick Henry warned of a president who would realize that no legal checks limited the presidency. Realizing this, Henry claimed an ambitious president would not hesitate to crown himself a “monarch”.
Before this week, that fear might have appeared hyperbolic. Today, however, Henry’s warning feels prescient. He is describing the kind of self-coup that the court could now potentially protect on the grounds that it was pursuant to the president’s duty to an official duty to defend the nation from instability.
Given the danger of this opinion, it is imperative that we respond. Citizens must make this election about rescuing our democracy from authoritarianism. That means, first, defeating Trump and preventing him from shutting down this case. More broadly, it means demanding that our next president restore the basic checks of the rule of law on the presidency. We cannot allow a system that immunizes a criminal president from dangerous official actions.
The next president must pledge to support legislation that prevents criminal official acts from presidential immunity or at least narrows the scope of immunized presidential behavior significantly. Given that the supreme court might strike down such a law, it is even more crucial to appoint justices who would uphold such a law and, more importantly, reverse the court’s disastrous decision this week.
Our country has recovered before from a president’s authoritarian acts by electing leaders who would repudiate them. It is time we did so again.
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Corey Brettschneider is professor of political science at Brown University and the author of The Presidents and the People: Five Leaders Who Threatened Democracy and the Citizens Who Fought to Defend It