SCOTUS's immunity ruling looks even worse now
The administration's wild threats against Obama show it did nothing but embolden Trump.
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Can you believe it has been over a year since the conservatives on the Supreme Court invented a very special immunity for a very special president?
It’s arguably the worst decision to come out of the Roberts Court, which is saying something. And it isn’t a reach to say that if there had been no immunity decision, there likely would be no Donald Trump second term.
Without the immunity decision, Trump would probably still be dragging out his appeals in his multitude of criminal cases, and the rest of us would be living in a world where the federal government remains functional. Instead, Trump has taken full advantage of that immunity, not just to dodge his crimes, but to crown himself a king, above all laws. And thus far, the Court seems more than happy to help.
On Tuesday, sitting in his increasingly gilded Oval Office, Trump was served a softball question about who he should have the Department of Justice prosecute in light of Director of National Intelligence Tulsi Gabbard’s so-called revelations about Russian interference in the 2016 election.
“It would be President Obama,” Trump said. “And Biden was there with him ... the leader of the gang was Obama. Barack Hussein Obama. He's guilty. This is treason.”
On Bluesky, Just Security’s Asha Rangappa pointed out that one of the rationales for the Court’s conservatives granted Trump immunity was “that it would prevent politically motivated investigations against former political opponents.” It seems impossible, but that justification somehow sounds even more craven and stupid than it did a year ago when Chief Justice Roberts claimed that the independence of the executive branch may be “significantly undermined” if a former president’s official acts are “routinely subjected to scrutiny in criminal prosecutions.”
You see? John Roberts was just looking out for future presidents, because surely granting Donald Trump immunity would guarantee that he would not try to criminally prosecute previous occupants of the White House. If there’s one thing we all know, it’s that Donald Trump is very meticulous about adhering to court orders and not at all inclined to use the power of his office to attack anyone.
Oh wait. That’s pretty much all Trump has done since taking office again in January.
Presidential immunity (exceptions apply)
The immunity decision was a literal get-out-of-jail-free card for Trump. The conservative majority took an absurdly expansive view of what constitutes an “official act” for which he would have absolute immunity.
Trying to figure out a way to overturn the 2020 election? Totally an official act because Trump talked to Department of Justice officials about how to do it. Pressuring former Vice President Mike Pence to break the law by refusing to certify Biden’s victory? Per Roberts, also an official act, because they were discussing their “official responsibilities.” Oh, and also, if you’re trying to sort out what is an official act or an unofficial one, “courts cannot inquire into the president’s motives,” and acts are not unofficial simply because they violate a law.
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Of course, Trump isn't limiting his attacks to former presidents, nor is Trump the only one doing the attacking. At Director of National Intelligence Tulsi Gabbard’s dystopian press conference yesterday, she alleged that Obama administration officials conducted a “years-long coup and treasonous conspiracy” against Trump, spouting long-debunked garbage about how President Obama led the effort to manufacture a fake intelligence assessment about Trump and Russia.
Never one to be left out, Attorney General Pam Bondi followed up by announcing a “strike force” to investigate Gabbard’s nonsense. To distract from his attempted coverup of the Epstein files, Trump is urging his cabinet member to threaten officials from previous administrations.
Gabbard and Bondi can undertake these sorts of attacks secure in the knowledge that if they cross a criminal line, it’s no big deal, because Trump can just pardon them. It’s not quite as amazing as having the Supreme Court invent an entire immunity doctrine to protect just one criminal, but it definitely allows them freedom to roam.
And of course, none of this poses a threat to Trump, as there’s almost nothing imaginable that Trump could do while president that would fall outside of the Court’s explanation of what an official act is. As long as Trump remembers to make his threats while giving a press conference or chats with one of his incredible number of sycophants who now have roles in the government, it’s an official act. Threatening to prosecute a former president for treason? Official act, because it was in response to a question about an official report from one of his cabinet members!
“You knew damn well I was a snake”
All of Roberts’s majority opinion has aged poorly, but nothing more so than his mocking of the dissenters for striking “a tone of chilling doom that is wholly disproportionate to what the Court actually does today” and “fear mongering on the basis of extreme hypotheticals about a future where the president ‘feels empowered to violate federal criminal law.’” Also, per Roberts, the real danger is that if presidents don’t have absolute immunity, there is the “prospect of an executive branch that cannibalizes itself, with each successive president free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next.”
Come on, man. Granting Trump absolute immunity is exactly what enables him to feel completely free to threaten to prosecute his predecessors.
It was ridiculous for Roberts to feign that this was an abstract, theoretical decision about the scope of the presidency versus a giveaway to the only president who committed a bunch of crimes, including fomenting an insurrection. The Court’s conservatives told a literal criminal to just go ahead and do more crimes, secure in the knowledge that he can never be prosecuted for them.
The Court did this despite Trump openly saying, multiple times, that if he won the 2024 election, he would prosecute President Joe Biden. He said so on Truth Social in October 2023. He said so in April 2024 in a giant, oddly fawning interview with Time, where he threatened to prosecute Biden and his family unless he was granted immunity. In September 2024, well after the Court gave him the immunity he demanded, Trump was still threatening Biden, saying that he would “pay a big price” for the numerous prosecutions he faced. That same month, he threatened former President Obama as well, sharing a post calling for him to be prosecuted by a military tribunal, which he did again in May of this year.
So, before the Court issued its immunity decision, Trump was literally running around saying he would do the exact thing — prosecute his predecessors — that the conservative majority said would be magically prevented by giving him immunity. While the case was pending, Trump openly admitted that if the Court did not give him what he wanted, he would prosecute his predecessors. After they gave him immunity, he continued to threaten to prosecute his predecessors. Now, Trump has stepped up his threats, saying Obama should be prosecuted for treason. Giving him immunity did nothing but embolden him.
Thanks to subsequent decisions from the Court’s conservatives, Trump is also able to “boldly and fearlessly” carry out his duties, if by “duties” you mean “completely dismantling the federal government and violating the separation of powers.” And the Court isn’t just standing aside and letting that happen. No, they’re actively kneecapping the lower courts when they rule against the administration.
When federal district courts issued nationwide injunctions to block the administration's objectively illegal actions, that made Trump mad. So the Supreme Court came to the rescue with a holding that lower courts basically can’t issue nationwide injunctions any longer. When lower courts blocked Trump from mass firings, the Court stayed those orders so he could immediately begin firing thousands of federal employees. When lower courts blocked Trump from dismantling the Department of Education, the Court took care of that too, giving him the green light to fire nearly 1,400 people. When lower courts blocked Trump from deporting people to countries they have never lived in without providing a meaningful opportunity for them to contest their removal, the Court’s conservatives magicked that away as well. And when Trump has illegally removed members of independent boards and commissions? Go on with your bad self, said the Court’s conservatives, ignoring their own longtime precedent barring the president from doing exactly this.
What an incredible gift to a president with no regard whatsoever for democracy.
On the one hand, the Court seems utterly disinterested in reining in Trump while he’s in office this time around, so he’s free to wreck the government without any consequences. On the other, once he’s out of office, he’s swaddled in the generous immunity the Court invented for him. He’s functionally protected from both civil and criminal liability.
When the immunity ruling came out last year, it seemed like the worst possible decision imaginable. What could be worse, really, than an opinion that put Trump above the law, just like a king? Even the most cynical of Court-watchers could not have predicted that the Court would so eagerly give up its own power. Indeed, anyone who was paying attention to the Court’s conservatives during the Biden years saw a wildly different attitude toward presidential power.
Remember when Biden tried to base student loan relief on an existing law that allowed for student loan relief and the conservative majority said Biden lacked the authority to do that, for … reasons? These days, though, the Court seems most inclined to make Richard Nixon’s 1977 statement come true: “Well, when the president does it, that means it is not illegal.”**
**Offer only good for Donald Trump.**
That’s it for today
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Another superb article from Lisa 🤗, albeit scary reading. It is amazing that a country’s Supreme Court actually allows Felon 47 to ruin the democracy of US. And they are an active player in this destruction. 🙈🙈🙈
A question: Does SCOTUS’s immunity ruling apply to previous Presidents?
Wishing all the avid readers a Happy Weekend, 🥰we all need some degree of happiness and calm to face the storms coming from WH.🥰
I call it #FaSCistOTUS because that is what they have supported and enabled. They don't care about the country, democracy or the law. They want their perks for life. Nothing else matters.