In his first term as president, Richard Nixon used the FBI, the CIA, and White House “advisors” — the now notorious “plumbers” — to spy on and sabotage his political opponents.
Under Monday’s Supreme Court decision — which confers the presumption of immunity on a president’s “official” actions — Nixon could not have been charged for any of these abuses of power, one constitutional law expert told Business Insider.
“Most, if not all, of that conduct would fall on the ‘presumptively-official’ side of the line,” said Michel Paradis, an attorney who teaches national security and constitutional law at Columbia Law School.
“And it is not obvious to me how you would show that it was not if you are forbidden from any inquiry into the president’s motives,” Paradis added.
Under Monday’s decision, “courts may not inquire into the President’s motives” in deciding if a presidential act is official or unofficial.
Trump is now free during a potential second administration to direct others to stretch or break the law in any of the ways he’s already signaled he hopes to, Paradis said.
He can dispatch the military to break up protests or deport migrants; he can fire civil servants who disagree with him; he can disband agencies he doesn’t like — including the Department of Education or the Environmental Protection Agency — and he can then pardon anyone who gets in trouble for carrying out his orders, Paradis said.
And by calling these official actions, he can do all of the above without himself being prosecuted, Paradis said.
“Or take the subject matter of Trump’s first impeachment,” the law professor added.
With his new Supreme Court-protected immunity, “He could have much more explicitly directed Rudy Giuliani to convey a threat to the Ukrainians demanding that they come out with dirt on Biden or that he would withhold all aid,” he said.
“And he can direct subordinates to not simply ‘skirt’ the law, but affirmatively break it with the promise of a pardon if they do,” Paradis added. “And he can do so, knowing that it is extremely unlikely under the court’s rule today that he could be successfully prosecuted.”
It will give Trump even more license to push legal boundaries, said former federal prosecutor Neama Rahmani, the president and co-founder of West Coast Trial Lawyers.
“Trump will be more empowered to push the limits of the law and to go after his rivals if he thinks he can get away with it,” Rahmani told Business Insider.
“Trump has always pushed the limits of the law, and if he has at least some immunity now, he will be even more willing to do so,” Rahmani added.
“It’s actually very striking that we’re getting this opinion three days before the Fourth of July, where we recognized our Declaration of Independence from a king,” said Cliff Sloan, Georgetown Law professor and constitutional law expert.
“And this opinion, more than any other in the Supreme Court’s history, gives the president king-like powers,” Sloan added.
“It’s a sad day for the country,” Sloan said. “It’s a sad day for our constitutional democracy. It was a sad day for the Supreme Court.”
Sloan said it was particularly disturbing that the majority decision made zero mention of the now-notorious Seal Team Six hypothetical — does a president enjoy official-act immunity if that official act is, as Commander in Chief, ordering Seal Team Six to assassinate a political rival?
“Everybody was horrified” when Trump’s lawyer first raised immunity in that circumstance as a possible consequence, Sloan said.
But when Justice Sonya Sotomayor, in Monday’s dissent, complained anew that Trump and future presidents can now get away with ordering political assassinations — by arguing that doing so is an official act — “the majority does not dispute it, which is really remarkable,” Sloan said.
“It’s actually incredible that we now have an opinion that seems to confer immunity for a wide range of truly dangerous and nefarious actions by a president,” he added.
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