Law, Politics & society

High court ruling on presidential immunity threatens the rule of law, scholars warn

Berkeley experts say the landmark U.S. Supreme Court ruling could allow presidents to commit crime under the guise of official business. One called the decision "dangerous."

The pediment and frieze of the U.S. Supreme Court building, bearing the inscription: Equal Justice Under Law
The U.S. Supreme Court's decision to grant broad immunity to presidential actions, regardless of criminal motives, poses a threat to the rule of law, Berkeley scholars say.

MattWade via Wikimedia Commons

A U.S. Supreme Court decision Monday granting presidents broad immunity from prosecution gives those leaders the power to commit crimes under the guise of official action, posing a direct threat to democracy and the rule of law, UC Berkeley scholars said. 

In a 6-3 ruling, the high court’s conservative majority found that the nation’s chief executive cannot be held legally liable for actions taken within the scope of official, core constitutional duties. Further, the justices ruled, courts cannot explore a president’s motives when assessing whether a president had broken the law. 

a casual headshot Erwin Chemerinsky, dean of Berkeley Law
Erwin Chemerinsky

Berkeley Law photo

In effect, the scholars said, the court put the president largely above the law in a way that was never written into the U.S. Constitution or established in more than 200 years of legal precedent. That could precipitate a crisis in the near term, they said, if former President Donald Trump wins re-election in November and uses the new protections with impunity to pursue his political opponents. 

“I didn’t expect such a broad definition of absolute immunity for a president for criminal acts,” said Berkeley Law Dean Erwin Chemerinsky, one of the nation’s preeminent constitutional scholars. “While the court leaves many issues unresolved, it is a dramatic and stunning affirmation of broad, absolute immunity for a president.” 

Berkeley political scientist Terri Bimes, a scholar in the history and operation of the U.S. presidency, called the court’s ruling “dangerous.” 

“The decision seems to permit the president to use the power of the office to commit acts that are illegal, that are criminal,” Bimes said. “The fact that these actions are being taken in the name of the presidency, that they’re official acts, makes them immune from prosecution. That is really problematic.” 

headshot of Terri Bimes, associate professor of political science
Terri Bimes

Brittany Hosea-Small for UC Berkeley

Broadly considered, they said, the Supreme Court’s ruling could fundamentally change the presidency, dramatically increasing its power and making the nation more vulnerable to authoritarian leaders who might pursue power by any means necessary. 

The ruling issued Monday was the culmination of a Supreme Court term in which the court majority advanced a range of conservative and right-wing interests: on gun rights, environmental protection, and on the federal system that regulates everything from health care to food safety and climate change.

The case of Trump v. United States arose after the former president was indicted in federal court for using a variety of legal maneuvers and political arm-twisting in an effort to overturn his loss to Democrat Joe Biden in the 2020 election. 

Trump sought to dismiss the indictments, arguing that he had absolute immunity because he was acting in his official capacity as president. But both the U.S.. District Court and the U.S. Court of Appeals rejected his arguments, saying that presidents are not above the law. 

For Trump, a legal win — and a political win 

The Supreme Court’s majority — with three of the six conservatives appointed in Trump’s single term — determined that a president of any party needs assurance of broad immunity to carry out decisions without fear of political retaliation. 

If the president were to call out the Navy Seals to assassinate a political rival, since he’s using his power as commander in chief, that would be absolute immunity.

Erwin Chemerinsky

Yesterday’s ruling gave presidents immunity for official acts, and said explicitly that the president’s motives were not relevant as they usually would be in a criminal prosecution. 

“If the president were to call out the Navy Seals to assassinate a political rival, since he’s using his power as commander in chief, that would be absolute immunity,” Chemerinsky explained. “The president could use the Department of Justice to seek retribution and engage in politically motivated prosecutions — that would be protected by absolute immunity. 

“There’s certainly a gray area in terms of things that are at the outer reaches of a president’s power. But even there, the Supreme Court says there’s presumptive absolute immunity.” 

In Trump’s specific case, that would seem to remove legal liability for pressuring Mike Pence, when he was vice president,  to not certify the 2020 election, Chemerinsky said, or for urging supporters to march on the Capitol as the certification was taking place. 

Donald Trump walking with his fist up
Berkeley scholars suggested that new U.S. Supreme Court ruling would give a re-elected President Donald Trump wide authority to engage in corrupt, anti-democratic behavior.

White House photo by Tia Dufour

The court suggested Trump’s efforts to pressure state officials to change the vote outcome in their states might not have been an official act, because it was not part of his official duties. It sent the case back to the District Court to reassess the indictments, all but assuring that the cases would not be resolved before this November’s election. 

Fears of a president unleashed and unrestrained

The outcome left both Chemerinsky and Bimes worried about how the former president would proceed if he’s re-elected. 

This ruling seems to suggest that if the president is acting in his official capacity, then it’s OK to engage in election subversion. … I think that’s dangerous.

Terri Bimes

Said Chemerinsky: “When it comes to Donald Trump, who has threatened to use the Justice Department for retribution, he now knows that no matter how baseless his political motive, he has absolute immunity.” 

For example, if he is returned to the White House, he could order the Justice Department to drop the investigation. Or he could pardon himself. 

“If he does win,” Bimes said, “in his second term, we could see a power-hungry Donald Trump unleashed from norms and really pushing to make the presidential office his own, and to do his own bidding.

“This ruling seems to suggest that if the president is acting in his official capacity, then it’s OK to engage in election subversion. … I think that’s dangerous.”

More broadly, Bimes worried that the court’s decision could transform the office and the power of the presidency far beyond Trump, giving the president enormous powers never before defined or enumerated in the Constitution. 

That wasn’t the ideal imagined by the nation’s founders, she said. In the early days of the nation, the president was expected to be a leader of elevated integrity. 

“They just fought the Revolutionary War against King George III,” she recounted. “They didn’t want a monarch. They didn’t want an executive who was above the law.” 

Instead, the founders envisioned a sort of “patriot king,” she explained, “a president who would be above the fray, who would not be engaged in factional conflicts, would not be going after his enemies.” 

At the same time, she continued, “there was this idea that Congress was more powerful than the presidency. It was the president who should be deferential to the Congress. That’s no longer the case.” 

If the courts don’t restrain a rogue president, who will?

In modern times, the presidency has accumulated more power — enough to make the office practically independent of Congress and of political parties. The personal character and integrity of the president becomes essential, and without that, there are fewer constraints on unethical or corrupt actions.

“It’s more of a personal office,” Bimes said. “The president can use all the powers of the presidency for whatever he wants.” 

That also separates the president from accountability. Trump and his allies have been able to undermine the electoral process through constant, false claims of fraud, Bimes said. She called the impeachment process “broken,” and said that in a time of bitter political division, it is insufficient to check even egregious misbehavior. 

“So we really need the courts to step in to help control the president, to make the president more accountable,” she said. 

“Now I’m not so sure that we can rely on that — I’m not confident. I’m worried about our democracy because of the character of Donald Trump.”