By Mitchell Zimmerman
If you hadn’t read the news in four years — or just arrived from another galaxy — the Supreme Court’s de facto grant of immunity to Donald Trump for his alleged federal crimes might sound almost reasonable.
There are “unique risks,” six right-wing justices warned, that if a president were required to answer criminal charges, his energies would be “diverted.” He might become “unduly cautious,” less willing to take “bold and unhesitating action.” But if you’ve followed even a shred of news, you know this reasoning is utterly unhinged — and dangerous. The risk the right-wing majority refuses to consider is that a president might “boldly” and “unhesitatingly” try to overturn our constitutional democracy.
The real danger isn’t that an “unduly cautious” president will worry too much about being charged with crimes. The danger is that a faithless president can use the enormous powers of the presidency to overturn an election he lost. That’s what nearly happened after the 2020 election — a matter the majority says not one word about.
Nonetheless, the six hold that when a president is performing “core constitutional powers” — engaging in actions which the Constitution says he can do — he is totally immune to criminal prosecution.
In the oral argument of the case, Trump’s attorneys were asked about the seemingly absurd notion that a president would be immune to prosecution if he officially ordered the assassination of a political rival. They didn’t dispute it. And now the Supreme Court just adopted that absurd theory.
Similarly, a president would now enjoy “absolute immunity” from prosecution if he told the attorney general, “Forge evidence that my opponent sold secrets to China and arrest him for treason.” He could freely sell national secrets to Russia. Auction pardons. Or assassinate unfriendly judges.
Where does this outrageous theory come from? Not the Constitution.
The six right-wingers’ ruling has no basis in law or logic — and turns the lessons of our history upside down. The Constitution includes no language granting the president immunity from criminal charges, and the Founding Fathers were dead set against an all-powerful executive. The Founders considered it a feature, not a fault, that under the proposed Constitution the president would be restrained. They maintained the president wouldn’t pose a threat to liberty because he wouldn’t be above the law, unlike the King of England.
As Alexander Hamilton wrote, former presidents who’d committed crimes during their presidency would thereafter be “liable to prosecution and punishment in the ordinary course of law.”
The conservative majority of the Supreme Court acknowledged, in theory, that a president is not 100 percent above the law. Even Trump’s own lawyers conceded the point.
Nonetheless, the six ignored Trump’s concessions and will now require his federal criminal trial to go through a time-consuming process to assess the immunity claims. That will delay the trial until after the election — which could give Trump the power to fire all of the prosecutors and dismiss the charges against himself if he wins.
Why would the conservative justices do all this to protect Trump? So they can continue to impose their extremist views on America.
The extremists currently enjoy a six-three Supreme Court majority. But Justice Thomas is 76 and Justice Alito is 74. Their seats could become vacant in the next four years and potentially flip. By protecting Donald Trump from prosecution, they’re trying to secure the succession at the Supreme Court — to make sure the right wing maintains its power.
The upcoming election could determine whether the far-right majority is flipped on its head — or paves the way for a deeper assault from extreme judges and politicians.
Mitchell Zimmerman is an attorney, longtime social activist, and author of the anti-racism thriller Mississippi Reckoning. This op-ed was distributed by OtherWords.org.
