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By Steve Wishnia

The basic principle of American democracy, if summed up in one sentence, is: THE PRESIDENT IS NOT A KING.

Three days before the Fourth of July, the Supreme Court retroactively crowned King Donald I. In Trump v. United States, it ruled that his attempts to use the federal government to nullify his loss in the 2020 election could not be prosecuted, because combating election fraud was part of his official duties.

In a 6-3 decision split along party lines, the Court held that the President was entitled to at least the presumption of immunity from prosecution for all acts that are part of his official duties, and absolute immunity for some.

Trump can’t be prosecuted for his alleged efforts to have the Justice Department push states to replace their legitimate electors with his own fraudulent slates, Chief Justice John Roberts wrote in the majority opinion, because overseeing the Justice Department was part of his “exclusive constitutional authority” to enforce the laws.

“Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials,” Roberts said—even if what he asked them to do was illegal.

Similarly, the Court said, Trump’s efforts to have Vice President Mike Pence refuse to certify the election results were entitled to at least the presumption of immunity, and he could only be prosecuted if federal courts determine that it would not “pose any dangers of intrusion on the authority and functions of the Executive Branch.”

The Court also held that official acts could not be used as evidence to convict a President for illegal unofficial acts, because that would defeat the “intended effect” of immunity.

“The President is not above the law. But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution,” Roberts concluded. “The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.”

‘A king above the law’

The decision “makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law,” Justice Sonia Sotomayor wrote in dissent. “Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent.”

The majority’s logic, Sotomayor argued, relied on Nixon v. Fitzgerald, the 1982 case in which the Court, rejecting a fired federal employee’s claim for damages against former President Richard Nixon, held the President immune from civil suits, because they might inhibit him from taking “bold and unhesitating action.” But in that case, Sotomayor said, the majority noted that there was a greater public interest at stake in criminal prosecutions than in actions for civil damages.

“Only the majority thinks that organizing fraudulent slates of electors might qualify as an official act of the President,” Sotomayor continued. “Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.”

“In every use of official power, the President is now a king above the law,” she concluded.

Immunity for Watergate

The Court’s decision violates a basic principle of democracy: That leaders and government in general are not above the law. That principle enables prosecuting politicians for corruption, soldiers for war crimes, and prison guards and police officers for brutality.

If this decision had been in effect in 1973, Richard Nixon would have had absolute immunity when he notoriously told his Attorney General, John Mitchell, that he wanted his aides being questioned about the Watergate burglary and related scandals to “stonewall it… plead the Fifth Amendment, cover up, or anything else, if it'll save it—save the plan.”

That was a discussion with a Justice Department official, after all.

Donald Trump’s lawyers argued that he couldn’t be prosecuted even for murder, such as if he ordered the Navy SEALs to assassinate a political rival. The Court decision said nothing to dispute that.

Justice Roberts’ opinion dismissed the dissenters’ objections as “fear-mongering on the basis of extreme hypotheticals about a future where the President ‘feels empowered to violate federal criminal law.’”

That is the kind of disingenuous minimizing that the Court has used in other recent cases. In Snyder v. United States, decided June 26, it held that while government officials could be prosecuted for taking “bribes,” payments before an official action, they could not be prosecuted for receiving “gratuities,” payments after that action. Justice Brett Kavanaugh’s opinion claimed that the federal law against gratuities might jeopardize people who gave a Dunkin’ Donuts gift card to their city trash collector.

In reality, that case involved the mayor of an Indiana city who had a crony rig the procedures for purchasing garbage trucks to favor a local truck dealer. The mayor asked for money afterwards, and the dealer paid him $13,000 for “consulting services.”

In a functioning democracy, the President is not a king, a dictator, or a despot. He is constrained by the law and can be voted out by the people. Donald Trump is accused of an assault on the most fundamental process of American democracy: That when the President and his party are defeated for re-election, they turn over power peacefully. They do not try to void the vote of the people with a combination of lies, frivolous lawsuits, and mob violence.

The Supreme Court’s decision will make it much harder to prosecute Trump for those crimes.