A Supreme Court decision giving presidents wide protection from facing charges after leaving office has sparked fears voiced by President Biden and Democratic critics that former President Trump will be further emboldened should he be elected to a second term.
Trump and allies have eyed more ambitious plans for a second term, pledging to more forcefully use the levers of power at their disposal.
Trump has also suggested it would be fair game for him to seek revenge on adversaries if he’s reelected — raising questions about both the extent to which the decision would shield Biden, and whether it greenlights retribution sought by Trump.
It was an issue immediately put front and center by Biden in a Monday night address.
“The American people must decide if they want to entrust … the presidency to Donald Trump, now knowing he will be even more emboldened to do whatever he pleases whenever he wants to do it,” Biden said.
“For all practical purposes, today’s decision almost certainly means that there are virtually no limits on what a president can do.”
In their Monday decision, the high court determined that presidents have immunity for core official actions they take while in office. In all other official acts presidents are “at least presumptively” immune.
The court made clear that even Trump’s pressure campaign at the Department of Justice to investigate his unproven claims of election fraud and his efforts to push states to withhold certifying electors are “absolutely immune.”
It’s a decision Trump critics fear opens Pandora’s box.
“Donald Trump has made it clear that, if he wins election, he will use his presidential powers to pardon all his co-conspirators and weaponize the Justice Department by firing career employees and replacing them with an army of sycophants willing to engage in retributive harassment against his political opponents,” Rep. Jamie Raskin (D-Md.), who served on the now-disbanded House committee that investigated Jan. 6, said in a statement after the decision.
“All of this would be presumably allowable under today’s horrific decision.”
Raskin described the decision as allowing a president to “assassinate political rivals, organize a military coup, or take bribes” — a description that parallels the dissent penned by the court’s three liberal justices.
In that dissent, Justice Sonia Sotomayor pointed to the same crimes, writing that allowing immunity for actions with roots in an official act would hamstring the courts from addressing any abuse of that power.
And in a concurring dissent, Justice Ketanji Brown Jackson likewise fixated on a president’s ability to carry out murders.
“While the President may have the authority to decide to remove the Attorney General, for example, the question here is whether the President has the option to remove the Attorney General by, say, poisoning him to death,” she wrote.
“Put another way, the issue here is not whether the President has exclusive removal power, but whether a generally applicable criminal law prohibiting murder can restrict how the President exercises that authority.”
Chief Justice John Roberts, in writing for the majority, said immunity was needed to prevent presidential prosecutions from “enterprising” prosecutors.
Roberts nodded to the potential for executives to go after one another without the sort of immunity conferred with his Monday order.
“The dissents overlook the more likely prospect of an executive branch that cannibalizes itself, with each successive president free to prosecute his predecessors,” he wrote in the majority opinion.
“An enterprising prosecutor in a new administration may assert that a previous President violated that broad statute. Without immunity, such types of prosecutions of ex-Presidents could quickly become routine.”
Trump has repeatedly suggested during his presidential campaign that revenge is on his mind, while his campaign has stated his retribution will be at the ballot box.
Last month, Trump told Newsmax it was “very possible” Democrats could face prosecution down the road. The next day, he told Sean Hannity on Fox News he would have “every right to go after them” after his own prosecution.
And Monday, after his one-time strategist Steve Bannon reported for prison for defying his Jan. 6 committee subpoena, Trump said Biden would “pay a big price,” a comment his campaign later said was about the election.
“Oh, this is pure weaponization,” he told a local Richmond, Va., radio station.
“What they’ve done in this country is unthinkable, and Biden is going to pay a big price for it, I believe.”
If a reelected Trump did want to go after a future former President Biden, Monday’s decision in some ways offers a shield.
Like Trump, as a former president, Biden would also be unable to face charges on conduct related to core official acts.
That could be a roadblock even as House impeachment leaders suggest they will send a criminal referral to the Justice Department reviewing what they have called influence peddling by the Biden family. It was a risky move from GOP investigators, as doing so would require them to name a crime Biden committed — something their probe has thus far failed to land on.
But that’s not the case for other Biden officials that have been a target of the GOP, including Attorney General Merrick Garland and Homeland Security Secretary Alejandro Mayorkas, along with members of Biden’s family. GOP members have also called for the prosecution of special counsel Jack Smith.
The decision also opens other avenues for Trump to investigate or harass Biden, actions that rely on his official authorities that would likely go unchecked by a court.
The decision includes other elements that complicate prosecution, barring the use of anything a president did under the scope of official authority as evidence elsewhere in a case and likewise instructing courts not to weigh a president’s motive in carrying out an act.
“A president raids the home of a political rival because of their beef, not because of any legitimately suspected criminal activity? The beef is irrelevant legally,” Lisa Rubin, an MSNBC legal analyst, wrote on the social platform X.
Political commentator Van Jones described the ruling as “a license to thug.”
“You can do whatever you want, and the Supreme Court is probably going to let you get away with it. That is very frightening in this case, and so I’m very, very concerned,” he said during an appearance on CNN.
Trump has celebrated the ruling on his social media site, writing at one point that Smith received a “high level SPANKING” from the court.
In another post he claimed he was completely exonerated despite the remand of his Jan. 6 case, which will weigh whether other actions he took to subvert the 2020 election fall into the bucket of core official acts.
“TOTAL EXONERATION! It is clear that the Supreme Court’s Brilliantly Written and Historic Decision ENDS all of Crooked Joe Biden’s Witch Hunts against me, including the WHITE HOUSE AND DOJ INSPIRED CIVIL HOAXES in New York,” Trump wrote Tuesday.
“All of these Unfair Charges represent the WORST level of Election Interference ever seen in our Country’s long and storied History.”
The Biden campaign says the decision is both alarming and a key issue for the race.
“I’m scared as s‑‑‑, and I think Americans are scared and should be scared of what Donald Trump will do, because he has been telling us for months,” Biden’s principal deputy campaign manager Quentin Fulks said following the decision.
“And so I can reassure you that when you do see President Biden out on the trail, he will be talking about the reasons why Americans should be scared of Donald Trump as he has been for months, and this Supreme Court opinion today just amplified that.”
