Don Moynihan writes:

[Trump’s] impeachment for fomenting an insurrection was derailed by Mitch McConnell and other Republican Senators who insisted that the legal system would hold him accountable: “We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being held accountable by either one.” Almost four years on, the legal system has failed to hold Trump accountable, and will not before he would gain authority to pardon himself. The only convictions has been for actions undertaken back in 2016, before he was President.

We live in an era where novel or an obscure legal theories have become part of our constitutional jurisprudence. Nonetheless, the idea that a President was above the law seemed like the longest of long shots. At the time Trump’s lawyers brought the case, it seemed so obviously ridiculous that the court was criticized as engaged in an attempt to delay, rather than prevent, the reckoning of Trump’s legal liabilities by hearing it. Rejecting Trump’s claims, the DC Circuit noted that they were “unsupported by precedent, history or the text and structure of the Constitution…Former President Trump’s stance would collapse our system of separated powers by placing the President beyond the reach of all three Branches.”

The Supreme Court Judges that granted the President protection from the law not afforded to any other citizen insisted to the Senate under oath that the President was not above the law. From their confirmation hearings:

• Alito: “no person in this country is above the law, and that includes the president”
• Kavanaugh: “No one is above the law. And that is just such a foundational principle of the Constitution and equal justice under law.”
• Gorsuch: “No man is above the law. No man.”
• Roberts: “I believe that no one is above the law under our system, and that includes the president.”
• Barrett: “No man is above the law.”

These were not idle questions. Gorsuch, Kavanaugh and Barrett were confirmed amidst a backdrop of questions of about whether Trump had violated the constitution, via, for example, the Emoluments Clause. Alito and Roberts were questioned amidst criticism about the excesses of George W. Bush’s 9/11 authorities, including allowing torture. It was not just confirmation hearings. As late as 2020, Clarence Thomas wrote: “The text of the Constitution … does not afford the President absolute immunity.” But in 2024 he declared that the executive demanded such immunity. I don’t think any reasonable person would believe this court would have made the decision if a Democratic President was the one that had asked the majority to change their mind.

A previous generation of the Supreme Court had rejected such an extravagant claim of Presidential immunity when Nixon advanced them amidst Watergate in 1974. Fifty years later, the Roberts court more or less embraced Nixon’s constitutional theory that “if the President does it, it’s legal.” According to Nixon aide John Dean, “the new ruling, in effect, decriminalizes Nixon’s conduct during the Watergate scandal.” [Continue reading…]