People protest outside the U.S. Supreme Court on July 1 in Washington.Mariam Zuhaib/The Associated Press
The United States of America celebrates its independence from Britain every July 4. But the America our neighbours to the south will salute with hotdogs and fireworks on Thursday is no longer the one they feted a year ago.
That old America was a nation predicated on the idea that every citizen of the country, from the president down, was equally subject to the law; that the people would be free from the tyranny of a king who could act without fear of the legal consequences faced by commoners.
That bedrock American principle, whose sole purpose is to prevent the country from devolving into despotism, was badly eroded on Monday when the U.S. Supreme Court ruled that the president is immune from criminal prosecution for any official decision or act.
“The relationship between the President and the people he serves has shifted irrevocably,” wrote Justice Sonia Sotomayor, one of three dissenting justices. “In every use of official power, the President is now a king above the law.”
You only have to read the two dissenting opinions to realize how contrived the majority opinion is. It’s a ruling that seems to start from a conclusion desired by the only former president to be charged with a felony, let alone 88 felonies, after leaving office – and whose appointments to the court gave it the conservative majority required to rule in his favour – and then works backward from there.
The majority argue that a previous Supreme Court ruling that found that presidents should not be subject to vexatious civil lawsuits on leaving office (in that case, a wrongful dismissal suit levelled at Richard Nixon by a former government worker) somehow means presidents should also have immunity from criminal prosecutions – as if there were no difference between the two kinds of legal actions, and the public interest in seeing either one pursued is exactly the same.
The majority also argues that a president needs to be able to act decisively, without having to stop to worry about the possibility of facing criminal charges levelled by political opponents. As Justice Sotomayor wrote, “I am deeply troubled by the idea, inherent in the majority’s opinion, that our Nation loses something valuable when the President is forced to operate within the confines of federal criminal law.”
For Donald Trump, the ruling is music to his ears. He has sneered at the law his entire life, including and especially the part of it he spent as president. He is running for re-election while fighting multiple indictments; the ruling may buy him time to focus on his campaign. But more troubling than that, it removes a critical guardrail that might keep his authoritarian instincts in check should he return to the White House.
How far could he go? “When [the president of the United States] uses his official powers in any way … he now will be insulated from criminal prosecution,” wrote Justice Sotomayor. “Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”
The ruling and its timing are together a repudiation of everything America stands for, or at least should stand for. It has come down from a compliant court just as a man who has openly campaigned on prosecuting his political enemies and critics, and who is backed by a movement that has a plan in place to ensure that political appointees in the civil services are loyal to Mr. Trump, is within reach of another term.
With the Supreme Court having bowed out of the fight to prevent a would-be authoritarian from taking control of the U.S. government, the last remaining hope resides with the Democratic Party and its presumptive nominee, Joe Biden.
But Mr. Biden, who trails Mr. Trump in the polls, is falling further behind because of his disastrous performance in last week’s debate. What should have been an easy win against Mr. Trump’s tsunami of lies and weirdness instead left many voters aghast at the 81-year-old Democrat’s halting and weak showing.
It now falls to Mr. Biden and his party to focus on the only thing that matters: beating Donald Trump. It must be done at all costs, including the cost of Mr. Biden’s ego.
Surely Mr. Biden doesn’t want his legacy to be that he paved the way for Mr. Trump and his authoritarian dreams – an American nightmare – to return to the White House. He needs to step aside and endorse a candidate that voters can embrace with confidence.