The shadow of former U.S. President and Republican presidential candidate Donald Trump is cast against an American flag as he arrives at a campaign event in Waukesha, Wis. on May 1.ALEX WROBLEWSKI/Getty Images
The past week has made it materially more likely that America will soon be living under a dictatorship.
Because of the presidential debate, and Joe Biden’s halting performance in it, it is more likely that Donald Trump will be elected president. Because of the Supreme Court’s immunity decision, it is more likely that as president he will rule as a dictator.
Of the first there is little to say at present. It is a crisis, but it is not obviously a fixable crisis. But it is one made infinitely more grave by the second.
To warn of an imminent Trump dictatorship is to expect a certain amount of eye-rolling in response, even from those not favourably disposed to Mr. Trump. But nothing Mr. Trump has said or done in recent months should lead us to believe he would shrink from assuming the powers of a dictator should the opportunity arise. And in the immunity decision the Supreme Court has given him his opportunity.
The Supreme Court has picked this of all moments, with a would-be dictator already, as it were, marching on Washington, to confer upon him and all future presidents near-total immunity from prosecution – not just in civil matters, such as presidents already enjoy, but criminal, and not just while they are president but for the rest of their lives.
The decision will make it more difficult to prosecute Mr. Trump for his past crimes, but opens the door for him to commit many more in future, should he become president again. The law was the last guardrail, the last check on his autocratic ambitions. Now it, too, is down.
To read the decision is to enter a world devoted exclusively to the exaltation of presidential power. The majority is greatly disturbed by the separation of powers implications of requiring a president to obey the law, and not at all by the separation of powers implications of allowing a president to defy the law.
It is consumed with the possibility that a president might be subject to baseless and retributive prosecutions after he had left office, and as such might be deterred from the “bold and unhesitating action” the office requires. That’s vanishingly unlikely, given a) this has never happened before in the history of the Republic, and b) the many procedural safeguards standing in the way of such a prosecution.
Certainly it is less likely than the scenario implied by the court’s “remedy”: that a president, granted immunity for any and all crimes he might commit in office, would be tempted to commit them – one president in particular.
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Ostensibly the majority has laid down a series of distinctions and gradations in the degree of immunity the president would enjoy: absolute, with regard to his “core” constitutional powers; presumptive, with regard to most other “official acts”; none, with regard to “unofficial” or private acts.
But, as an eviscerating dissent by Justice Sonia Sotomayor makes clear, these distinctions dissolve under scrutiny. What the majority considers “core” powers are undefined, but seem to extend far beyond any previous understanding of the term: for example, the majority expressly forbids any prosecution of Mr. Trump for pressuring his acting Attorney-General to help him steal the 2020 election.
The “absolute” vs “presumptive” distinction likewise turns out to be largely meaningless. To overcome the presumption, prosecutors would have to show that a criminal charge posed “no dangers of intrusion on the authority and functions of the Executive Branch.” Not that it would not unduly or unreasonably intrude on executive authority, in the balancing language courts typically employ where more than one interest is in play: no intrusion is permitted, or even a danger of one.
Even the “official” vs “unofficial” distinction breaks down. Official acts are defined broadly, as any that are “not manifestly or palpably beyond [his] authority.” Were prosecutors, what is more, to bring a charge against a former president based on his private acts, they would be prohibited from introducing any evidence referring to his official acts. So, for example, if a former president were accused of taking a bribe in exchange for some official act, prosecutors could not name the act in front of a jury.
You don’t have to indulge in the more lurid possibilities to see how this could be abused, by a corrupt president bent on revenge, or even by an ambitious president bent on enlarging his powers.
For all the other checks and balances ultimately collapse into one: the ability to impose criminal sanctions, in extremis, on a president who refuses to acknowledge their authority. What use is impeachment, if the president can threaten the senators? What good are the courts, if he can fire, jail or kill all the judges?
There’s a word for a system of thought that cannot abide any limit on the power of the leader, whose capacity for “bold and unhesitating action” must include the right to break any law he chooses. But I just can’t put my finger on it right now.