In response to the Supreme Court’s ruling After the landmark decision that the president would be immune from criminal prosecution for “official” acts, Justices Sonia Sotomayor and Ketanji Brown Jackson issued a fierce dissent. They criticized the reasoning of the six conservative justices who essentially granted the president new powers. Each argued that the decision posed a fundamental threat to American democracy and the rule of law.
Sotomayor said:
The President of the United States is the most powerful man in America, and perhaps the world. When he uses his official power in any way, by majority opinion, he is now protected from criminal prosecution. Order Navy SEAL 6 to assassinate a political rival? Immunity. Organize a military coup to maintain power? Immunity. Accept a bribe for a pardon? Immunity, immunity, immunity. Let the President break the law, exploit the loopholes of his office for personal gain, and use his official power for nefarious purposes. Because if he knew that he might one day be held accountable for breaking the law, he might be as bold and fearless as we would like. That is the message of the majority today.
Jackson made a similar, painful point.
So a hypothetical president who admits to ordering the assassination of political rivals or critics, or who clearly orchestrates a failed coup, would have a fair chance of being exonerated under the majority party’s new model of presidential accountability.
They all argued that conservatives, led by Chief Justice John Roberts, had elevated the presidency to a level akin to royalty. Sotomayor wrote:
The relationship between the president and the people he serves has been irrevocably changed. Whenever he exercises formal power, the president is now a king above the law.
Here are some of the most passionate excerpts from the minority opinion:
Justice Sonia Sotomayor
Today’s decision to grant criminal immunity to a former president rewrites the presidency. It makes a mockery of the principle that underlies our Constitution and our system of government: that no one is above the law. Relying on its own misguided wisdom that the president must act “boldly and unhesitatingly,” the court grants former President Trump all the immunity he asked for and more.
The court now faces a question that has never before been asked in the history of the nation: whether a former president can enjoy immunity from federal criminal prosecution. The majority believes he should, so they create an unwritten, unhistorical, and unjustifiable immunity that puts the president above the law.
Presumptive or absolute, the majority rule grants immunity from prosecution for any purpose, for any official power, even the most corrupt. It is as bad and unfounded as it sounds. Finally, the majority rule declares that evidence of the president’s acts of immunity cannot play any role in a criminal prosecution against him. Such a ruling that prevents the government from proving knowledge or intent to use the president’s official acts to prosecute private crimes is nonsense.
The historical evidence for presidential immunity from criminal prosecution is decisively against it. For example, Alexander Hamilton wrote that former presidents were “subject to prosecution and punishment according to the ordinary processes of law.” For Hamilton, it was a crucial distinction between the “sacred and inviolable” “King of Great Britain” and the “President of the United States,” who was “subject to personal punishment and dishonor.”
This historical evidence reinforces the assumption that no one in this country has ever been free to break the criminal law. The majority fails to recognize or grapple with the lack of historical evidence for new immunity. Since there is nothing in the ledger, the best the majority can do is to claim that the historical evidence is meaningless.
Our nation’s history also demonstrates a well-established understanding shared by the president and the Justice Department: that former presidents are criminally liable for their official acts. Consider, for example, the Watergate scandal. After the Watergate tapes revealed that President Nixon had abused his official authority to interfere with the FBI’s investigation into the Watergate break-in, President Ford pardoned Nixon. Both Ford’s pardon and Nixon’s acceptance of the pardon were necessarily “based on the understanding that a former president faced potential criminal liability.”
But today’s courts have replaced the presumption of equality before the law with a presumption that the president is above the law in all his official acts.
Imagine that the president says in a formal speech that he will block a political rival from passing a bill he opposes, no matter what (an official act). He then hires a private assassin to kill that political rival (an unofficial act). Under the majority rule, a murder indictment cannot include a claim that the president publicly admitted a deliberate intent to support the mens rea of murder. At least that is an odd result.
Beyond the fate of this particular indictment, the long-term consequences of today’s decision are profound. The court effectively creates a lawless zone around the president, reversing a status quo that has existed since the founding of the country. This new immunity from official acts now stands “like a loaded weapon” against any president who puts his own interests, his own political survival, or his own financial interests ahead of the interests of the nation.
The President of the United States is the most powerful man in America, and perhaps the world. When he uses his official power in any way, by majority opinion, he is now protected from criminal prosecution. Order Navy SEAL 6 to assassinate a political rival? Immunity. Organize a military coup to maintain power? Immunity. Accept a bribe for a pardon? Immunity, immunity, immunity. Let the President break the law, exploit the loopholes of his office for personal gain, and use his official power for nefarious purposes. Because if he knew that he might one day be held accountable for breaking the law, he might not be as bold and fearless as we want him to be. That is the message of the majority today. Even if this nightmare scenario never comes to pass, and I pray it never will, the damage has been done. The relationship between the President and the people he serves has changed irrevocably. In every aspect of exercising his official power, the President is now a king above the law.
No president in the history of our republic has ever had reason to believe that he or she could use the cover of his or her office to violate criminal laws with impunity. But in the future, every former president will be covered by such impunity. If the person holding that office abuses his or her official power for personal gain, the criminal laws that the rest of us are bound to follow will not provide a backstop. I object, out of fear for our democracy.
Judge Ketanji Brown Jackson
With an understanding of how our system of accountability for criminal conduct generally functions, it becomes much easier to see that the majority’s decision in this case broke new and dangerous ground. In a departure from the traditional model of individual accountability, the majority created something entirely different: a presidential accountability model that creates immunity from criminal law that applies only to the most powerful officials in our government.
So even a hypothetical president who admits to ordering the assassination of a political rival or critic, or who clearly orchestrates a failed coup, would have a fair chance of gaining immunity under the majority party’s new model of presidential accountability.
According to the majority view, while all other citizens of the United States should conduct their affairs and live their lives within the scope of the prohibition against crime, the president cannot do so. He must sometimes be exempt from the dictates of the law, depending on the nature of his actions. In fact, the majority believes that the president, unlike any other person in our country, is relatively free to engage in criminal acts in the performance of his official duties.
(T)he Court has unilaterally altered the balance of power between the three branches of our government, thereby expanding the power of the judiciary and the executive, to the detriment of Congress, with regard to the rule of law. Second, the new model of presidential accountability undermines the restraint of law as a deterrent to future presidents who might abuse their power to the detriment of us all.
Under today’s ruling, the president must still “take care that the laws are faithfully executed,” but he is not required to follow those same laws himself when acting in his official capacity.
If the structural consequence of today’s paradigm shift is a step in the wrong direction, the practical consequence is a five-point fire that threatens to engulf democratic self-government and the normal functioning of our government. The majority dismisses this possibility (charging the dissent as “a callous doomsday tone that is completely out of proportion to what the Court is actually doing today”), but Justice Sotomayor made the point clearly, and I will not dwell on it any further.
Now that there is some doubt as to when a former president will be held criminally accountable for any wrongdoing he committed while in office, the majority opinion provides an incentive for all future presidents to cross the line into criminality while in office, since they will be presumed immune from prosecution and punishment unless they acted “clearly or obviously beyond[their]authority.”
Starting today, tomorrow’s president can exercise the commander-in-chief’s authority, his foreign policy powers, and all the broad law enforcement powers set forth in Article II at will, including in ways that Congress deems criminal and that could have serious consequences for the rights and freedoms of Americans.
(T)he seed of absolute power for the president has been planted. And, without a doubt, absolute power corrupts absolutely. “When one man can decide for himself what the law is, all can. That means first chaos, then tyranny.” Likewise, “(i)n the government becomes a lawbreaker, contempt for law grows, and every man invites to become a law to himself. Anarchy is invited.” After today’s ruling, I fear that our country will reap what this court has sown.
In short, the Court has declared for the first time in history that the most powerful public servant in the United States can become its own law (under circumstances that are not yet fully determined). As we enter this uncharted territory, the people must be wise and always vigilant, steadily playing their established role in constitutional democracy, and collectively acting as the ultimate bulwark against any chaos that may arise from the decisions of this Court.
Most of my colleagues seem to trust our courts’ ability to prevent the president from becoming a king by applying the new presidential accountability paradigm’s uncertain standards on a case-by-case basis. I fear they are wrong. But for the sake of all of us, I hope they are right. In the meantime, I object because the risks (and powers) the courts are now taking on are intolerable, unjust, and clearly incompatible with basic constitutional norms.
