Mark Joseph Stern writes:

The Supreme Court’s conservative supermajority fundamentally altered American democracy on Monday, awarding the president a sweeping and novel immunity when he weaponizes the power of his office for corrupt, violent, or treasonous purposes. This near-insurmountable shield against prosecution for crimes committed while in office upends the structure of the federal government, elevating the presidency to a king-like status high above the other branches. The immediate impact of the court’s sweeping decision will be devastating enough, allowing Donald Trump to evade accountability for the most destructive and criminal efforts he took to overturn the 2020 election. But the long-term impact is even more harrowing. It is unclear, after Monday’s decision, what constitutional checks remain to stop any president from assuming dangerous and monarchical powers that are anathema to representative government. As Justice Sonia Sotomayor put it in her terrified and terrifying dissent, “the President is now a king above the law.”

Trump v. United States, Monday’s decision, has no basis in the Constitution as written. Donald Trump brought the case as a delay tactic, an effort to run out the clock on his prosecution before the November election. Special counsel Jack Smith has charged the former president with a series of crimes related to his conspiracy to block the peaceful transition of power in 2020, culminating in the insurrection of Jan. 6. The indictment weaves a narrative of election subversion out of various actions the president took—many of which involved abuse of his office. In response, Trump raised a claim of “absolute immunity” from criminal prosecution for any “official act” he took before leaving the White House. The theory was, again, largely designed to stall the case, but also meant to shield him from the most damning charges if the case moved forward. First, the Supreme Court abetted his stalling strategy, taking up the appeal then sitting on it for months. Now it has rewarded his larger plan, too, cutting the legs from Smith’s indictment.

The fundamental problem with Trump’s legal theory is that it has absolutely no basis in the text of the Constitution, history, or tradition. The Framers knew how to grant immunity to officeholders—they did it for members of Congress—yet expressly declined to immunize the president. So Chief Justice John Roberts, writing for the majority, located this nonexistent rule in, for lack of a better word, a vibe ostensibly expressed by bits and bobs of the Constitution. His views flow from the premise that the Framers envisioned a “vigorous” and “energetic” executive who could “fearlessly” carry out his duties. Fear of criminal prosecution, Roberts warned, could interfere with “vigorous, decisive, and speedy execution” of his obligation to ensure the law is “faithfully executed.” From this hazy generalization, the chief justice extracted an atextual “absolute immunity” for any “official act” that the president takes “within his exclusive sphere of constitutional authority.” Thus, a president who accepts a million-dollar bribe in exchange for a pardon may never be criminally prosecuted, since his pardon power falls within this “exclusive sphere.”

Roberts also created, out of whole cloth, a second category of acts for which the president has “presumptive immunity,” which are at once broader and hazier. Any action that falls within “the outer perimeter of his official responsibility” now enjoys this robust immunity. How do courts know what falls within this category? They must ask if it is necessary “to enable the President to carry out his constitutional duties without undue caution.” Roberts suggested that this immunity may also be “absolute,” but “we need not decide that question today.” Rather, the lower courts will have to apply this Jell-O–style standard to the allegations in the indictment, deciding whether this immunity can be “rebutted.” Finally, the chief justice conceded that “unofficial acts” receive no immunity. [Continue reading…]

Former Federal judge J. Michael Luttig: This Supreme Court ruling has cut the ‘heart and soul out of America’: