Back on January 8 of this year, we posted “Truth or Myth: the president can break the law”, focusing on the main argument that was so often obscured:
Unfortunately at this critical moment, Americans have sidetracked into discussions about whether U.S. legal precedent supports or conflicts with the claim that a U.S. president is immune from criminal prosecution instead of focusing on the actual threat: Trump doesn’t want his illegal actions to be protected based on his role as president. He wants them protected based on the new idea that the president is allowed to commit crimes. A president (and by extension, anyone who works for him, or in the federal government, or state government, or local government) can do whatever they want because committing crimes is no longer illegal for them.
At that time, we were awaiting Spring decisions from the Supreme Court that included a ruling on this question. Worriedly we asked,
The question is always, will these rulings [denying that the president is above the law] be upheld by the current Supreme Court, packed as it is with members who have already made it clear that they have an agenda to overturn every ruling that supports civil rights in this country?
Very gravely, but not unexpectedly, we got our answer on July 1 in Trump v. United States, perhaps the most aptly named case ever to appear before that court. As the PBS Newshour sums it up,
In a landmark ruling with potentially major impact on the 2024 presidential campaign, a U.S. Supreme Court majority ruled that presidents — including former President Donald Trump — have immunity from prosecution when carrying out “official acts.”
“Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority,” the court wrote. “And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.”
We spent a lot of time in January making the deviousness of the language clear: “[the lawyers for Trump] are not claiming that Trump did nothing illegal. They are claiming that it’s okay that he did.They are claiming that the president can commit crimes–acts that are clearly illegal for everyone else–without consequence.”
How can this be? Because Trump’s legal team changed the definition of “private actions”:
“…precedents [afford] the President immunity from suit for his official conduct – primarily on the basis that he should be enabled to perform his duties effectively without fear that a particular decision might give rise to personal liability… the separation-of-powers doctrine did not require a stay of all private actions against the President. Separation of powers is preserved by guarding against the encroachment or aggrandizement of one of the coequal branches of the government at the expense of another. However, a federal trial court tending to a civil suit in which the President is a party performs only its judicial function, not a function of another branch. No decision by a trial court could curtail the scope of the President’s powers.”
What Trump’s lawyers did was broaden the definition of “private actions” to claim that EVERY action a president takes is formal–that is, presidential, part of carrying out the duties of the office.
And the Justices appointed by Trump agreed, saying that “presidents are completely immune from prosecution for things they did through core constitutional powers of the presidency [and] are at least presumed to be immune–and potentially are always immune–for all official acts of their presidency.”
But wait, you might say; they’re still saying official acts only, aren’t they? That’s where the true democracy-killing intent comes in, for the ruling says that what constitutes a core power and an official act is open to interpretation.
That is, the president can decide what is an official act and what is not, and will likely decide that all their acts are official, and the increasingly anti-democratic, Trump-appointed court judges will agree.
As Justice Sonia Sotomayor said in her dissent, this ruling “expands the concept of core powers beyond any recognizable bounds… [this] expansive view of core power will effectively insulate all sorts of noncore conduct from criminal prosecution…” Justice Ketanji Brown Jackson also dissented, writing that “it appears that the first decision point is whether the alleged criminal conduct involves one of the President’s ‘core’ powers. If so (and apparently regardless of the degree to which the conduct [calls on] that core power, the President is absolutely immune from criminal liability for engaging in that criminal conduct.”
Again, Trump and his team don’t attempt to hide the fascist intent of their argument. Infamously, during arguments before the Court, Justice Sotomayor asked Trump attorney D. John Sauer this:
Sotomayor: If the president decides that his rival is a corrupt person, and he orders the military or orders someone to assassinate him, is that within his official acts that, for which, he can get immunity?
Sauer: It would depend on the hypothetical, but we can see that could well be an official act.
It’s mind-numbing. The U.S. Supreme Court has granted any president immunity from legal prosecution for any action he takes. Anything. Any action. This is the definition of a dictatorship.
Under the guise of protecting separation of powers, the Court has agreed to give the executive branch dictatorship powers.
It no longer matters that our judicial system is steadily filling with appointees dedicated to ending democracy in this country. None of their courts will ever hear a case against a president ever again.
It’s hard to take in this moment fully. Life has gone on seemingly as usual since July 1. We’re about to have a presidential election as if nothing has changed. Some people seem to believe that if Trump loses, the threat of this ruling is removed. They are wrong. The president now has dictatorial powers in this country. Anyone who takes office can use them, and when someone in power can do something, they do it.
We have taken a step that we can’t return from any time soon. It would require dedicated, years-long work by a coalition of American politicians, judges, lawyers, and citizens to change the composition of our now anti-democratic, Trump courts and get this ruling reversed. It’s very, very hard to believe that this will happen without first descending into dictatorship. And that’s if Trump is not elected this November, the odds of which are vanishingly small. Republican election officials in many states are already prepared to throw the election, and again make no secret of this:
A report by Citizens for Responsibility and Ethics in Washington (CREW) found “[a]t least 35 current county election officials” that have voted against certifying an election in the past. Public Wise, Informing Democracy, and the Center for Media and Democracy identified dozens of additional election officials that have “promot[ed] election denialism or amplif[ied] unsubstantiated claims of voter fraud or irregularities.” The amount of election deniers acting as election officials “presents a challenge for monitoring certification,” specifically in swing states and remote areas.
…The Brookings Institution found that in 2020, “at least 17 county election officials across six swing states attempted to prevent certification of county vote totals.” In 2022, it grew to “at least 22 county election officials” who voted to delay certification in swing states. This year, there have been “at least eight county officials” that have already voted against certifying election results for primary or special elections.
So we hang by our fingernails from a precipice. Again, it’s just so hard to believe this is really happening. It’s not time to give up. But it is time to prepare for a very different future, in which fighting for justice and democracy through our established channels will be much harder, and often impossible, depending on the state or county you live in. It will likely get much darker before we do fight our way back to the light. But we will continue to use those channels, to force them back into existence where they’ve been choked out, and to stand up for our democratic systems, flawed as they are. That’s what we’re fighting for, after all–the chance to continue the work America has been struggling to do, with success and failure, anger and division, celebration and humility, since 1787–form a more perfect union.

