Officially titled Gesetz zur Behebung der Not von Volk und Reich, the Enabling Act of 1933 was passed in Germany’s Reichstag and Reichsrat on 23 March 1933. The act enabled the Cabinet, and the Chancellor, to make new laws without the involvement of the Reichstag or the President, then Paul von Hindenburg. The passing of the act marked the formal transition of the country from a democratic republic to a totalitarian dictatorship. This was the law that turned Weimar Germany into NAZI Germany. Within six months of its passage of the Enabling Act, the German government, led by then Chancellor Adolf Hitler, banned its opposition and the Third Reich ascended to complete and total control of the country. World War II began six years and six months later when NAZI Germany invaded Poland.
On Monday, 1 July 2024, in the United States of America, something heinously similar has just happened. The Supreme Court of the United States (SCOTUS) handed down its decision in Trump v. United States (2024), Monday. The case, brought by former—and disgraced—President Donald Trump, asked the Court to decide what, if any, and when the President has immunity from prosecution stemming from actions taken in an official capacity as President.
While you may have heard something or other about this case, I want to dig into it a little today and explore the opinion and its implications for the future. (That’s my goal, anyway.) It is chilling to think that the Supreme Court took this case, examined the arguments, and handed down a decision so counter intuitive to the very foundation and the principles of the American Experiment and the US Constitution. But… this incarnation of the Roberts’ Court isn’t exactly what I’d call “legitimate.” More on that to come.
Some Background
There are two very important, foundational SCOTUS cases that are important to have in the back of your mind whilst thinking about this, the first is Nixon v. Fitzgerald (1982) and the second is Clinton v. Jones (1997). In Nixon, the Court held that the President is immune from civil suits regarding official acts as President. In Clinton, the Court clarified that that immunity did not extend to acts committed prior to assuming office.
The other two SCOTUS cases it’s important to be aware of in this context are US v. Nixon (1974) and Trump v. Vance (2020). These cases limit the scope of the President’s privilege within the judicial process, basically saying that the President has to comply with the legal authorities of the judiciary.
We got here because of Donald Trump’s fundamental and antagonistic misinterpretation of the Office of the Presidency. His claims of “total presidential immunity” from any prosecution—regardless of the facts, laws, or Will of the People—drove this case to the Supreme Court by his lawyers filing multiple, ridiculous motions to dismiss cases brought against him due to “presidential immunity.” For reference, these include cases brought by the Department of Justice, multiple Congress Critters, and several Capitol Police officers in response to the January 6th Insurrection fomented by Trump in 2021 (consolidated in Thompson v. Trump). The immunity defence has also been tried in multiple other filings relevant to election interference and financial fraud cases brought in Georgia, DC, and New York.
The Decision
In the opinion of the Court, Chief Justice John Roberts held that presidents have immunity from criminal prosecution for some acts conducted under their constitutional authority whilst in office, but not for any private acts.
Before I break into any kind of armchair-amateur analysis, I want to drop the link to the opinion so you have the opportunity to read and digest the Court’s decision. You can access the opinion directly, here, from the SCOTUS website.
Initial Reaction
Personally, I am pretty pissed off and depressed by this opinion. I’m so tired. Tired of watching this Court, the GOP, and Donald Trump pillage this country and its revolutionary form of government of the people, by the people, and for the people. It breaks my heart. It burns me up. Honestly, I’d write more about my personal feelings if I could but find the words to express this frustration, anger, and grief. But I digress…
To say that the reaction to the Court’s decision to grant past, present, and future presidents immunity from criminal prosecution has been “bad” in the wake of this term would be a catastrophic understatement. While the opinion caveats that the president is not totally immune, as Trump has claimed, it does not tease out what are considered “official acts” and what are not. Broadly, the opinion is being seen as a monumentally unacceptable, short-sighted, and even foolish decision by pundits and political commentators on the left, and further evidence of the corruption of SCOTUS’ conservative majority.
In April, former federal prosecutor, Ankush Khardori, wrote in Politico that the Court is “issuing transparently political rulings that are clearly aligned with the political priorities of the Republican Party.” I could not agree more. Alas, other recent opinions from this term seem to clearly explicate that point. See: Loper Bright Enterprises v. Raimondo/Relentless, Inc. v. Department of Commerce, Fischer v. United States, Securities and Exchange Commission v. Jarkesy, ad infinitum.
Politicians, like Speaker Emeritus Nancy Pelosi (D-CA), have said that the Court’s opinion is an abrogation of the foundational American principle that no one is above the law. Explicitly, the Speaker Emeritus’ statement says, “The former president’s claim of total presidential immunity is an insult to the vision of our founders, who declared independence from a King. A seriously dangerous aspect of the ruling is its holding that official acts are inadmissible in trials for unofficial acts. With its delay, the Republican-appointed 6-3 Court gave the defendant a political gift.”
It’s worth noting here that former Senate Majority Leader (now minority leader) Mitch McConnell stated—in a speech in the well of the Senate after Trump’s second impeachment trial in that body—that he did not believe a president should be immune from prosecution for actions taken while in office.
With this context, it’s really inconceivable that the majority opinion of the Court is contrary to the historical and common-sense understanding of the office. But here we are.
Fallout
This is exactly the decision that Trump wanted, further exacerbated by the Court’s unconscionable delay in issuing the opinion. Trump’s goal was, is, and has always been to defer his criminal trials until after the 2024 election in November. And, by golly, that is exactly what SCOTUS did.
While Trump has hailed the opinion as a “big win for our constitution and democracy,” I would urge you to examine that statement critically. What, exactly, in the opinion benefits the Constitution? Where in its pages does the opinion strengthen the Constitution and protect the Will of the People? I would argue that it does not, in any respect.
Remember, Donald Trump LOST the popular vote, twice! And the opinion is the direct result of a broad, multi-year attack on the institutions of our Republic. From McConnell’s theft of one Supreme Court seat at the end of Obama’s second term to the shoehorning of Amy Coney-Barrett’s appointment to the Court at the end of Trump’s first—and, hopefully, only—term, the Republican Party has stacked the deck against multiracial democracy in the United States. And, I know, I have written extensively on the myriad other ways that the GOP has worked to tear down our institutions over the years, but please believe me when I tell you that nothing I have said is a fiction. In fact, don’t. You can go and look it all up for yourselves.
This is just the beginning, by the way! Project 2025, from the Heritage Foundation, is a nightmare of regressive actions, policy positions, and machinations for Trump to institute on day one, if he wins this election, which is now more likely possible given that his criminal trials won’t begin until after the November election has come and gone. Terrifying stuff.
To put it simply, the opinion of the Court issued Monday will provide endless delay for Trump because hearings must now be held to determine what was an “official” act and what wasn’t.
Furthermore, the opinion of the Court is a direct reversal of US v. Nixon, and grants the President of the United States unfettered, unlimited, tyrannical powers because, to quote Richard Nixon directly, “when the president does it, that means that it is not illegal.”
To quote from Justice Sotomayor’s dissent…
When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. 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.
Justice Sonya Sotomayor, Dissent
Trump v United States, 29-30
Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.
Justice Sonya Sotomayor, Dissent
Trump v United States, 30
The Court has so totally and completely upended the balance of power in the system of checks and balances within the Federal Government. The presidency is now unassailable and unaccountable to the People in real time, only our four-year election cycle can hold a president accountable… and that is not adequate. Especially when considering the goals and machinations of Donald Trump. How can we guarantee there will be elections every four years when the man running for the Office has stated, explicitly, that he plans to be a dictator?
Welcome to the Imperial Presidency era.
Fixing the Fuckup
So… how do we fix this?
Unfortunately, in this case, the only check on SCOTUS is the Constitution itself. Therefore, a constitutional amendment is the only vehicle for remedy in this situation. And that means—because we cannot rely on the Republican Party to play fairly or with the good of the nation in mind and at heart—we have to elect enough Democrats—all over the country, at all levels of government, local, state, and federal—to author, pass, and ratify a constitutional amendment. Good luck.
Conclusion
Look, I know I sort of set this up to be a pulling apart of the decision, but I just don’t have it in me. So, I implore you to read the SCOTUS Blog analysis, here. It is also worth nothing the shock and horror of major constitutional scholars, such as, Andrew Weissmann and Neil Katyal, Laurence Tribe, and/or Melissa Murray, whose reactions and analysis is far more informative than mine.
