Supreme Court dissents take a ‘darker tone’ on Trump immunity ruling

Supreme
Court
Justices
Sonia
Sotomayor,
Ketanji
Brown
Jackson
and
Elena
Kagan
laid
out
grim
visions
of
U.S.
democracy
in
their
joint
written
dissents
to
the
court’s
Monday

decision
on
former
President

Donald
Trump‘s
claim
of
presidential
immunity
from
criminal
prosecution.

“In
every
use
of
official
power,
the
President
is
now
a
king
above
the
law,”
Sotomayor
wrote.
“This
majority’s
project
will
have
disastrous
consequences
for
the
Presidency
and
for
our
democracy.”

Jackson
echoed
her
warning:
“If
the
structural
consequences
of
today’s
paradigm
shift
mark
a
step
in
the
wrong
direction,
then
the
practical
consequences
are
a
five-alarm
fire
that
threatens
to
consume
democratic
self-governance
and
the
normal
operations
of
our
Government.”

As
written
opinions
go,
the
dissenters’
alarm
was
“definitely
striking,”
said
Alison
LaCroix,
a
legal
historian
at
the
University
of
Chicago.

“It’s
a
darker
tone.
It’s
more
of
a
warning,”
LaCroix
told
CNBC
in
an
interview
about
the
three
dissents,
written
by
the
only
three
justices
nominated
to
the
court
by
Democratic
presidents.

In
a
6-3
opinion
along
partisan
lines,
the
Supreme
Court
on
Monday
ruled
presidents
are
immune
from
criminal
prosecution
on
a
case-by-case
basis,
that
they
are
exempt
when
charges
relate
to
“official”
presidential
acts
and
not
exempt
from
charges
of
“unofficial”
acts.

The
immediate
effect
was
to
send
special
counsel
Jack
Smith’s
criminal

election
fraud
case
against
Trump
back
to
U.S.
District
Judge
Tanya
Chutkan.
She
will
have
to
rule
on
whether
the
criminal
charges
pertain
to
official
acts
Trump
carried
out
as
president,
granting
him
immunity,
or
his
private
conduct.

The
added
complexity
will
almost
certainly
delay
the
trial
until
after
the
Nov.
5
election,
a
victory
for
Trump,
the
presumptive
nominee,
and
the
Republicans.

Chief
Justice
John
Roberts
attempted
to
present
the
majority
opinion
as
a
modest
move,
which
is
why
the
dissenters
felt
a
need
to
deliver
such
notably
fiery
pushback,
LaCroix
said.

“Chief
Justice
Roberts,
in
the
way
that
he
often
does,
tried
to
occupy
a
kind
of
middle
ground
of
moderation
and
the
court
as
an
institution,”
LaCroix
said.
“The
dissents
really
point
back
at
that
and
say,
‘Listen,
you
need
to
acknowledge
or
own
that
this
is
as
big
of
a
deal
as
it
is.'”

Sotomayor
wrote,
“The
long-term
consequences
of
today’s
decision
are
stark.
The
Court
effectively
creates
a
law-free
zone
around
the
President,
upsetting
the
status
quo
that
has
existed
since
the
Founding.”

The
dissenters,
all
of
whom
were
appointed
by
Democratic
presidents,
argued
the
ruling
will
expand
executive
power
beyond
anything
the
justices
can
imagine
today.

They
also
laid
out
several
hypothetical
scenarios
of
presidential
crimes
that
they
claimed
would
now
be
difficult
or
impossible
to
prosecute.

For
example,
if
the
president
“orders
the
Navy’s
Seal
Team
6
to
assassinate
a
political
rival?
Immune,”
wrote
Sotomayor.
“Organizes
a
military
coup
to
hold
onto
power?
Immune.
Takes
a
bribe
in
exchange
for
a
pardon?
Immune.
Immune,
immune,
immune.”

Whether
a
president
is
immune
“from
legal
liability
for
murder,
assault,
theft,
fraud,
or
any
other
reprehensible
and
outlawed
criminal
act”
will
now
“always
and
inevitably
be:
It
depends,”
wrote
Jackson.

“Even
if
these
nightmare
scenarios
never
play
out,
and
I
pray
they
never
do,
the
damage
has
been
done,”
Sotomayor
added.

LaCroix
said
that
while
these
hypotheticals
are
extreme
and
“obviously
rhetorical,”
they
are
not
complete
hyperbole.

“I
think
what
we’ve
seen
in
the
last
five
or
six
years
is
that
anything
someone
can
come
up
with
as
a
hypothetical,
increasingly,
is
something
that
actually
happens
or
might
happen,”
she
said.

“We’ve
seen
a
lot
of
norms
just
get
blown
away.
I
feel
like
the
lesson
of
the
last
half-decade
or
so
has
been,
don’t
assume
that
anything
is
completely
off
the
table.”