At this point, the six Republican-appointed members of the U.S. Supreme Court seem to be making it up as they go.
Republicans used to claim they were originalists when interpreting the Constitution. That is, if an issue, such as abortion, wasn’t specifically addressed in the Constitution, then women could not claim a constitutional right to an abortion.
There is nothing in the Constitution that provides for or even implies immunity for the president of the United States. If you go back to 1776 and read the words of our Founding Fathers who were fighting for independence from the King of England, it is clear they did not believe in the king’s authority, but in the authority of the people.
They believed in Democracy, not in the rule of a king. It is one of the primary reasons people escaped to America.
The court’s ruling comes out of thin air. They argue that the president would be overwhelmed with legal issues without immunity, impacting his ability to do his job. Interestingly, however, this has not been an issue for 45 of the last 46 presidents.
Why is former President Donald Trump the only one with this issue? Is it, perhaps, that other presidents followed the Constitution and the law, that they didn’t steal classified documents at the end of their term, that they respected the transition of power after losing an election, that they didn’t assault women, and that they didn’t cook their business books?
Did the justices notice that only one former president, Trump, needs their offer of immunity because of his inappropriate behavior in and out of office? Clearly, this was a ruling for the benefit of one man.
Can anyone familiar with our nation’s history and the writings of the people who created the U.S. Constitution, find evidence that framers thought the president had or needed immunity to carry out his job?
Respected historians have condemned the ruling, noting zero Constitutional basis for it, and stating this was a clear political nod to protect Trump, who appointed three of the six Republican-appointed justices ruling in Trump’s favor.
One does not have to go far in the past to hear these same six justices publicly state in their writings or their testimony to Congress that the president is not above the law in any shape or form.
For example, before he was appointed to the court, Justice Brett Kavanaugh wrote in a law review that presidents could be subject to criminal prosecutions after they leave office. When questioned during his confirmation hearings if he was suggesting that presidents had immunity, Kavanaugh said, “No one has ever said, I do not think, that the president is immune from civil or criminal process.”
He added, “Immunity is not — not the correct word, and I do not think anyone thinks of immunity. And why not? No one is above the law. And that is just such a foundational principle of the Constitution and equal justice under law.”
In his written and verbal statements, Kavanaugh frequently cited the Federalist Papers in finding that presidents should “be liable to prosecution and punishment in the ordinary course of law.” Yet, regardless of his writings and testimony that there was no presidential immunity provision in the Constitution, Kavanaugh voted Trump had immunity while carrying out the official duties of his office.
During Justice Neil Gorsuch’s confirmation hearings, Sen. Lindsey Graham, a Republican from South Carolina, said a president was “not above the law” and asked Gorsuch if he agreed. Gorsuch responded, “No man is above the law. No man.”
Yet, Gorsuch, like Kavanaugh, voted that Trump was above the law while carrying out the official duties of his office.
Justice Samuel Alito also made it clear in his confirmation hearings that the president could not “escape prosecution” if he, for example, ordered the intelligence community to murder someone.
“Neither the president nor anybody else, I think, can authorize someone to—can override a statute that is constitutional.” He added, “No person in this country is above the law, and that includes the president and it includes the Supreme Court. Everybody has to follow the law, and that means the Constitution of the United States, and it means the laws that are enacted under the Constitution of the United States.”
Responding to a senator during her confirmation hearing, Amy Coney Barrett said, “Senator, I believe that no one is above the law under our system, and that includes the president.” Chief Justice John Roberts said in 2005, “The president is fully bound by the law, the Constitution, and statutes”
For the benefit of Trump, they all had a change of heart.
In her vote against presidential immunity, Justice Ketanji Brown Jackson wrote, “In the majority’s view, while all other citizens of the United States must do their jobs and live their lives within the confines of criminal prohibitions … the majority holds that the President, unlike anyone else in our country, is comparatively free to engage in criminal acts in furtherance of his official duties.”
Justice Sonia Sotomayor, in her dissent, wrote that the ruling of the Republican-appointed members of the court “makes a mockery of the principle, foundational to our Constitution and system of government, that no man is above the law.”
Investigative journalist David Rohde talked with former Justice Department officials who served under Trump during his first term. He wrote they “fear that the Supreme Court’s recent immunity ruling will make it easier for him to use the department against his enemies if he is re-elected president.”
Trump has made it clear this is his goal. According to Rohde, former members of Trump’s Justice Department believe the immunity ruling will “give Trump cover to improperly pressure the Justice Department for his political benefit, to prosecute an enemy or go easy on an ally, by saying he was executing his official duties as president.”
This ruling opens the door for Trump to engage in further criminal behavior if and when he is back in the White House in January 2025.
This man normally disregards the rule of law; I can’t imagine what he will try to get away with now that he has the blessing of the Supreme Court’s immunity ruling. This should concern all Americans who believe in our constitutional democracy.
Tom Zirpoli is the Laurence J. Adams Distinguished Chair in Special Education Emeritus at McDaniel College. He writes from Westminster. His column appears on Wednesdays. Email him at tzirpoli@mcdaniel.edu.
