‘The President Is Now A King’: Liberal Justices Express ‘Fear For Democracy’ In Trump Immunity Dissent

Meeting with Sonia Sotomayer..Meeting with Janet Napolitano... (Official White House photo by Pete Souza)

Supreme Court Justices Sonia Sotomayor and Ketanji Brown Jackson wrote dissents on Monday in which they vehemently objected to the court’s majority opinion in the presidential immunity case brought by former President Donald Trump.

The majority held that presidents are entitled to “absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority” and “at least presumptive immunity” for all official acts. Sotomayor, in a dissent penned out of “fear for our democracy” and joined by Justices Elena Kagan and Jackson, wrote that the ruling “reshapes the institution of the Presidency” and that “the President is now a king.”

“The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding,” Sotomayor wrote. “This new official acts immunity now lies about like a loaded weapon for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation.”

Sotomayor wrote that the president will be “insulated from criminal prosecution” whenever he uses his official powers.

“Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune,” she wrote. “Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”

Sotomayor claimed the Court gave Trump “all the immunity he asked for and more.”  However, Chief Justice John Roberts specifically stated in the majority opinion that Trump asserted “a far broader immunity than the limited one we have recognized.”

“He contends that the indictment must be dismissed because the Impeachment Judgment Clause requires that impeachment and Senate conviction precede a President’s criminal prosecution,” Roberts wrote. “The text of the Clause provides little support for such an absolute immunity.”

While Roberts wrote Trump is “absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials,” he said the lower courts would have to sort out whether many other allegations in Trump’s indictment constituted official acts subject to immunity.

Roberts admonished the dissent for “cherry-pick[ing]” its sources and “fear mongering on the basis of extreme hypotheticals.”

“As for the dissents, they strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today—conclude that immunity extends to official discussions between the President and his Attorney General, and then remand to the lower courts to determine ‘in the first instance’ whether and to what extent Trump’s remaining alleged conduct is entitled to immunity,” he wrote.

In her own dissent, Jackson wrote that the risks assumed by the majority are “intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms.”

“Stated simply: The Court has now declared for the first time in history that the most powerful official in the United States can (under circumstances yet to be fully determined) become a law unto himself,” she wrote. “As we enter this uncharted territory, the People, in their wisdom, will need to remain ever attentive, consistently fulfilling their established role in our constitutional democracy, and thus collectively serving as the ultimate safeguard against any chaos spawned by this Court’s decision.”

Trump was indicted in August 2023 on four felony counts relating to alleged efforts to overturn the 2020 election. He sought to dismiss the indictment by arguing that he has absolute immunity from criminal prosecution for official acts during his presidency, but both the district court and D.C. Circuit found he did not have immunity.

In other opinions this term, the liberal justices have admonished the majority for stripping power away from the executive branch.

“At the end of a momentous Term, this much is clear: The tsunami of lawsuits against agencies that the Court’s holdings in this case and Loper Bright have authorized has the potential to devastate the functioning of the Federal Government,” Jackson wrote in her dissent to another case Monday, where the majority ruled in favor of a North Dakota truck stop and allowed a longer time frame for challenging federal agency regulations.

The Supreme Court on Friday reversed its landmark Chevron case, which held that courts should defer to agency interpretations of statutes when the language is ambiguous. While opponents of Chevron praised the ruling as a victory that would take away a tool agencies used to violate civil liberties of individuals who challenge government regulations, Kagan wrote in her dissent that it was an indication the majority “disdains restraint, and grasps for power.”

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