Donald Trump is, at least for now, still facing federal (as well as state) criminal charges over his role in the effort to overturn the legitimate results of the 2020 election.
When the Supreme Court’s conservative majority ruled earlier this month that presidents are immune from criminal charges for laws they allegedly break while performing official duties, Adav Noti, executive director of the Campaign Legal Center, thought back to the final weeks of Donald Trump’s time in the White House.
Faced with an embarrassing defeat to Joe Biden, Trump and his campaign had orchestrated a nationwide effort to challenge the loss in court, lying and citing conspiracy theories about fraud. Eventually, they summoned a mob to Washington, D.C., that attacked Congress in an unsuccessful effort to overturn the election results.
But a couple weeks before the Capitol attack, Trump made a crucial decision. In furtherance of his efforts to cast doubt about the election results and provide the grounds to overturn them, outside advisers had urged Trump to issue an order to seize voting machines nationwide, in order to gin up evidence about the machines being compromised. There was even a draft executive order drawn up announcing the seizure. But Trump did not issue it.
The Capitol attack the following month was a crisis, to be sure, but a president issuing a lawless order to seize voting machines would have represented something closer to a directive to overthrow the American democratic process, in which elections are largely run by states and localities.
Now Noti, a former attorney at the Federal Election Commission, wonders if Trump would have acted differently if the new Supreme Court ruling had been in place.
“People in the White House counsel’s office and DOJ said, ‘It’s illegal, you can’t do that,’ and they won that argument,” Noti said. “That’s the conversation that I think potentially comes out differently in this environment. So now, they go to the president and say, ‘You can’t do that, it’s against the law,’ and the president says, ‘I’m not bound by the law! I cannot be subjected to legal consequences for it, so I’m doing it anyway — and that’s an order.’”
Across the country, legal experts and observers are grappling with the Supreme Court decision’s implications for the future of American democracy. If presidents cannot be held criminally liable for laws broken as part of their official duties, hasn’t the Supreme Court incentivized illegal acts by the most powerful person in the world? And in turn, haven’t the justices handed presidents new, powerful tools for subverting democracy?
Many say the answer is yes.
“If there is a president intent upon committing crimes, this decision gives him a very clear path to that,” said David Becker, executive director of the Center for Election Innovation and Research and a former voting rights attorney at the Department of Justice.
“Ordering the Justice Department to institute a sham investigation? Absolutely immune,” Becker said, listing what he called the Supreme Court’s “road map” for corrupt future presidents. “Ordering the military to seize voting machines, as the former president almost attempted in 2020? He’s talking to the military, that’s a core function [of the presidency], he would be immune. Ordering the National Security Agency to conduct secret surveillance on a political opponent? The NSA is part of the executive branch, immune.”
That sense of alarm is common among legal observers. The Supreme Court should rehear the case “so the justices can correct course before the unanticipated consequences of their broad opinion come to pass,” wrote Mary McCord, a former federal prosecutor who served as acting assistant attorney general for national security at the Justice Department in 2016 and 2017, and who is now executive director of the Institute for Constitutional Advocacy and Protection at Georgetown.
The ramifications of the decision for the country’s democratic process, McCord told HuffPost, are vast. The president, she agreed, is now arguably immune from criminal prosecution were he to direct the FBI to conduct surveillance of political enemies, for example, or direct the Justice Department to pursue a sham election fraud investigation — something the court’s conservative majority explicitly blessed in its opinion.
“If Congress can’t criminalize — and courts can’t look behind — any of the interactions between the president and the executive agencies, then you can see them being weaponized,” she said. “Beyond DOJ – think about the IRS. ... [For] any agency with any sort of enforcement authority, it becomes a tool for real abuse and overreach of that authority.”
McCord noted that dissenting justices brought up the hypothetical of a president being immune from criminal prosecution for ordering the military to assassinate a political opponent — a scenario that the majority scoffed at, but did not address specifically in their ruling and concurrences. And she agreed that an order to seize voting machines may be legally protected, too.
“Given the breadth of the majority opinion, if the president ordered the FBI to seize voting machines in order to investigate fraud, baseless or not, in the election — taking this majority at its word, that would be something that not only the president couldn’t be prosecuted for, but also, if Congress can’t legislate on that, and courts can’t examine it, then even a state secretary of state’s lawsuit would arguably be something where the Supreme Court says, ‘courts can’t examine this.’”
What is official conduct?
Donald Trump is, at least for now, still facing federal (as well as state ) criminal charges over his role in the effort to overturn the legitimate results of the 2020 election. But the future of those charges depends on how lower-court judges interpret the Supreme Court’s opinion .
In essence, the Supreme Court’s majority ruling , penned by Chief Justice John Roberts and joined by the court’s five other conservatives, broke up presidential conduct into three categories.
According to the ruling, the president’s “core constitutional powers” are “absolutely immune from criminal prosecution,” while “unofficial,” or private, acts are not immune. The decision also outlined a third, middle category – official acts on the “o uter perimeter” of the presidency, for which the president is “presumptively” immune, unless prosecutors can show “that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’” (In a dissent, Justice Ketanji Brown Jackson said this vague wording meant that, for presidents, “the Rule of Law now becomes the rule of judges.”)
What’s more, according to Roberts’ opinion, “in dividing official from unofficial conduct, courts may not inquire into the President’s motives,” and official actions cannot be used as evidence in criminal cases brought for a president’s unofficial acts.
Roberts did not write that any of the actions detailed in the federal election interference charges against Trump were “unofficial.” But he did explicitly say Trump was immune from one of the accusations — of attempting to use, as the indictment put it, “the power and authority of the Justice Department to conduct sham election crime investigations and to send a letter to the targeted [swing] states that falsely claimed that the Justice Department had identified significant concerns that may have impacted the election outcome.” This, apparently, would be part of the president’s official duties.
“There’s just no doubt that current, former and future presidents now enjoy really broad immunity from criminal prosecution,” said Jessica Levinson, a professor of law and director of the Public Service Institute at Loyola Law School. “And to the extent that you have a president who wants to push and/or jump over the limits of criminal law, this Supreme Court opinion is rather freeing.”
Expanding the President’s toolbox
Even if the court has stripped all — or even most — criminal penalties for presidents who break the law in office, that doesn’t necessarily mean there are no safeguards against election theft.
After all, if a future president were to move to seize voting machines, for example, he could face a lawsuit in civil court, though it’s unclear how successful that would be. He could also face opposition, or even the threat of mass resignation, from members of his administration who are themselves not immune from criminal prosecution. This is what Trump faced when he threatened to fire then-acting Attorney General Jeffrey Rosen after Rosen refused to go along with Trump’s plans.
Trump could preemptively pardon any co-conspiring officials. But in a second term, things could be different anyhow — Trump seems intent on making abject loyalty the top priority for would-be members of his administration.
“You have to look at the larger set of constraints that limit what any president could try to do in terms of illegal conduct,” said Rick Hasen, a law professor and director of the Safeguarding Democracy Project at the University of California, Los Angeles.
“What are the other safeguards? Can we count on the courts? Can we count on administrators? Can we count on people surrounding that president to reign in illegal conduct? And one of the dangers with Trump in particular is there is a lesser likelihood of having guardrails in the administration next time, because they’re doing vetting that is focused primarily on the loyalty of those individuals that might work for the government. So I think that creates a greater risk than you would ordinarily see.”
This debate — what, realistically, are presidents now incentivized to do? — continues among legal observers.
The court has given ” a sitting president many more tools to try to use their power to manipulate an election,” Noti told HuffPost. “They’ve greatly expanded the toolbox. And all those tools remain illegal. But as to the president, that no longer really matters.”
They have given a sitting president many more tools to try to use their power to manipulate an election. Adav Noti, executive director of the Campaign Legal Center
Levinson saw it slightly differently. “There’s not more tools in the toolbox — it’s just, if you steal the toolbox, you might not face any penalties for doing so.”
On one point, though, the lawyers with whom HuffPost spoke agreed: While Trump’s 2020 effort to overturn the legitimate election results largely went through his campaign and outside advisers — people like Rudy Giuliani, then Trump’s personal attorney lobbied state legislators with conspiracy theories — the Supreme Court has now incentivized future presidents to work directly through the levers of power exclusively available to the White House.
“[Conservative attorney] Cleta Mitchell will not be on the call with Brad Raffensperger in the future, Rudy Giuliani will not be having meetings in the White House — unless, and I expect as is possible, people like Cleta Mitchell and Rudy Giuliani and John Eastman are hired by the White House,” Becker said.
“It’s the easiest thing to do – for a president who wants to use his position for corruption, the sole consideration for hiring should be fealty to that individual.”
Even setting aside the legal consequences of the Supreme Court’s immunity ruling, the court’s majority dramatically changed the norms to which presidents have, for centuries, held themselves: In the past, it was unthinkable that a president would be intimately involved in the prosecutorial decisions of the Department of Justice, for example.
That’s why it was so scandalous when Trump meddled with the DOJ , such as when he pressured then-FBI director James Comey to drop the agency’s investigation of Trump’s then-national security adviser, Michael Flynn.
But in his opinion, Roberts spelled out that such prosecutorial decisions were explicitly the official domain of the executive branch — and that “the Constitution vests the entirety of the executive power in the President.” Former Trump Justice Department officials told NBC News they feared this would only embolden Trump if he wins in 2024.
McCord pointed out that the justices didn’t explicitly disavow the norm that presidents shouldn’t meddle in the Justice Department’s decision-making — but she also acknowledged that Trump would likely see the ruling as a green light in this regard.
“The next time, he’s not going to be trying to appoint an attorney general that believes in those norms,” she said.
Then, there’s the greatest norm of all — the peaceful transfer of power between presidents. Trump has violated this once before, when he called his mob to Washington, D.C. And he’s never shown any sign of regret for it.
When HuffPost asked Hasen how Trump might use the Supreme Court’s immunity ruling to stack the deck for the next Republican nominee for president in 2028, Hasen took issue with the question.
“You’re assuming that Trump would leave office at the end of his second term?”
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