WASHINGTON — In her dissent from a Supreme Court opinion that afforded former President Donald Trump broad immunity, Justice Sonia Sotomayor pondered the potential doomsday consequences: A president could pocket a bribe for a pardon, stage a military coup to retain power, order the killing of a rival by the Navy SEAL Team Six — and be protected from prosecution for all of it.
The scenarios may sound part of an apocalyptic future. But the plain reality of the 6-3 opinion is that it ensures presidents have a wide berth to carry out official acts without fear of being criminally charged and it could embolden Trump, who was impeached twice and faced four separate prosecutions over the last year and a half, as he eyes a return to the White House.
The outcome is significant because Trump, the presumptive Republican nominee, has been public about wanting to pursue the same boundary-obliterating conduct that defined his four years in office, spawned criminal and congressional investigations and raised thorny questions about the scope of presidential immunity that were resolved largely in his favor in Monday's landmark opinion.
“Over the long term, I think it will broaden what presidents are willing to do because they will see that there’s a gray zone that the Supreme Court laid out,” said Princeton University professor Julian Zelizer, who studies political history. The effect of the opinion, he said, will be to “broaden the scope of what's going to be permissible” and give presidents sufficient cover for acts that may veer into criminality.
The opinion authored by Chief Justice John Roberts did not dismiss the case charging Trump with plotting to overturn the 2020 presidential race, as Trump had desired, and it left intact the long-established principle that there's no immunity for purely personal acts. However, it significantly narrowed the case by finding that presidents enjoy absolute immunity for their core constitutional duties and are entitled to the presumption of immunity for other official acts.
“This is a full-throated endorsement of the unitary executive theory” in a dramatic way, said Cornell University law professor Michael Dorf, referring to the theory that the U.S. Constitution vests extraordinary power in the presidency.
From a practical perspective, the court's opinion means that the trial judge, Tanya Chutkan, must now engage in further fact-finding analysis to determine how much of the conduct alleged in the indictment from special counsel Jack Smith can remain part of the case.
Importantly for Trump, the one area the conservative majority said was unquestionably off-limits for prosecutors was his command of the Justice Department. That includes his directives to department leadership after the 2020 election to conduct what prosecutors said were “sham” investigations into bogus claims of election fraud, as well as his attempts to use the department's authority to advance his fruitless efforts to remain in power.
Though the opinion doesn't make new law about the interplay between the White House and the Justice Department, Roberts affirmed that a president has “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials” and may also “discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to ‘take Care that the Laws be faithfully executed.’”
“I do think that this is a norm-breaking opinion and I can imagine Trump using this as a basis for a complete destruction of DOJ independence,” said Boston College law professor Kent Greenfield.
The position from the nation's highest court is welcome news for Trump, particularly as he and his allies have suggested wanting to use the power of the presidency — including, presumably, the investigative authority of the Justice Department — to pursue retribution against political enemies.
After his May conviction in his New York hush money case, Trump suggested he might try to retaliate against Hillary Clinton, his 2016 opponent, if he returns to the White House.
“Wouldn’t it be terrible to throw the president’s wife and the former secretary of state, think of it, the former secretary of state, but the president’s wife, into jail? Wouldn’t that be a terrible thing? But they want to do it,” Trump said in an interview on Newsmax. “It’s a terrible, terrible path that they’re leading us to. And it’s very possible that it’s going to have to happen to them.”
More recently, he reposted a meme that suggested that former congresswoman Liz Cheney, who as the No. 3 Republican in the House broke ranks with her party and voted to impeach Trump over the Jan. 6, 2021 riot at the U.S. Capitol, had committed treason and should face a military tribunal.
The posts and comments raise concerns given how Trump's interactions with the FBI and Justice Department as president shattered longstanding norms and became central to special counsel Robert Mueller's investigation into whether he had obstructed an inquiry into potential Russia coordination with his 2016 presidential campaign.
Trump urged his FBI director, James Comey, to an investigation into a close ally and fired him weeks later, berated his hand-picked attorney general, Jeff Sessions, for having recused himself from the Russia investigation and also sought the termination of Mueller.
In his report, Mueller did not conclude whether Trump had illegally obstructed the investigation, in part, because of a Justice Department legal opinion that says sitting presidents cannot be indicted. But he did say that presidents were not “categorically and permanently” immunized for obstructing justice by using their presidential power.
To be sure, there are safeguards still in place that could prevent most presidents from testing the limits of criminal immunity.
The threat of impeachment by Congress remains — Trump was impeached over a call with Ukraine's leader and Jan. 6, but acquitted by the Senate — as do the practices, protocols and norms that govern Washington bureaucracy.
Roberts, for one, sought in his majority opinion to downplay the impact, saying Sotomayor was striking “a tone of chilling doom that is wholly disproportionate to what the Court actually does today.”
But even if the scope of presidential power is not directly expanded by the opinion, there's no question that it could benefit any president determined to abuse those powers.
“Not every president will take advantage, but the lesson, I think, of Donald Trump is: one might,” Zelizer said. “Or the lesson of Richard Nixon is: one might. And the ‘one mights’ are the lessons that you're looking for.”
