By Will Dunham
WASHINGTON (Reuters) – The president of the United States has been elevated to the status of “a king above the law.” The occupant of the White House may order assassinations of political rivals without fear of prosecution. America’s leader may now be insulated from criminal consequences for whatever he or she wants to do in office.
That is what U.S. Supreme Court liberals said in dissent to Monday’s landmark decision recognizing for the first time broad immunity from prosecution for former presidents.
In the ruling involving the federal criminal case against Donald Trump for his efforts to overturn his 2020 election loss, the court found that he cannot be prosecuted for official actions taken within his constitutional powers as president. Private actions, under the ruling, were not protected.
The court’s six conservatives were in the majority in the ruling, with liberals Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson in dissent.
“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,” Sotomayor wrote, joined by Kagan and Jackson.
“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. Let the president violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends,” Sotomayor wrote.
The ruling, written by Chief Justice John Roberts, noted that presidents need to execute their duties “fearlessly and fairly” without the threat of prosecution for their actions.
“Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today,” Sotomayor wrote. “Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the president and the people he serves has shifted irrevocably. In every use of official power, the president is now a king above the law.”
Jackson, writing a separate dissent, said that the ruling overthrows long-cherished principles in American law.
“All of this is to say that our government has long functioned under an accountability paradigm in which no one is above the law; an accused person is innocent until proven guilty; and criminal defendants may raise defenses, both legal and factual, tailored to their particular circumstances, whether they be government officials or ordinary citizens. For over two centuries, our nation has survived with these principles intact,” Jackson wrote.
Jackson said that the court’s majority with this decision instead “breaks new and dangerous ground.”
“Departing from the traditional model of individual accountability, the majority has concocted something entirely different: a presidential accountability model that creates immunity – an exemption from criminal law – applicable only to the most powerful official in our government,” Jackson wrote.
Jackson zeroed in on the question of what might constitute an official action shielded from prosecution.
“Thus, even a hypothetical president who admits to having ordered the assassinations of his political rivals or critics … or one who indisputably instigates an unsuccessful coup … has a fair shot at getting immunity under the majority’s new presidential accountability model,” Jackson said.
That is because, Jackson added, whether a president’s conduct may subject him to criminal liability hinges on the characteristics of the action at issue that would imbue it with the status of “official” or “unofficial” conduct.
“In the end, then, under the majority’s new paradigm, whether the president will be exempt from legal liability for murder, assault, theft, fraud or any other reprehensible and outlawed criminal act,” Jackson said, “will turn on whether he committed that act in his official capacity, such that the answer to the immunity question will always and inevitably be: It depends.”
(Reporting by Will Dunham; Additional reporting by John Kruzel and Andrew Chung; Editing by Rosalba O’Brien)
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