The following editorial originally appeared in The Virginian-Pilot:
In a sharp deviation from what the Founders intended, the U.S. Supreme Court ruled on July 1 that presidents enjoy absolute immunity from prosecution for official acts conducted in the execution of their duties, a precedent that dramatically expands the power of the nation’s highest office.
Writing for the court, Chief Justice John Roberts waffled as to whether former President Donald Trump’s conduct leading up to the Jan. 6 Capitol attack qualified as official acts, and are therefore protected, or private acts, and thus subject to prosecution. And the court did not probe the question of what that could mean for anyone following the president’s orders.
The former president was charged in 2023 by Special Counsel Jack Smith with conspiring to overturn the 2020 results in several ways, including pressuring former Vice President Mike Pence to deny certification of the electoral count affirming President Joe Biden’s victory. Trump maintains he acted within the constitutional scope of his office, and his lawyers argued that a president should be immune from prosecution for official acts.
A majority of the Supreme Court agreed and, in a 6-3 decision, concluded that “official acts,” such as urging Justice Department officials to investigate (unfounded) allegations of voter fraud, are immune from criminal prosecution.
Justice Sonia Sotomayor strenuously disagreed with the decision, writing that immunity, “‘lies about like a loaded weapon’ for any president that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the nation.”
Left unsaid is that those ordered by a president to carry out illegal acts may still face charges. This puts the president’s subordinates in legal limbo. A military member asked to kill a political opponent or participate in a coup would face the choice of disobeying the commander in chief or acting absent the immunity enjoyed by the president.
A similar scenario could be pressed to members of the civil service. They, too, would face a dire choice should a president immune from criminal prosecution direct them to act in a way that may or may not be an “official act.”
The fact that the presidency endured for 235 years without having to seek legal resolution to the question of criminal immunity speaks volumes about Trump’s behavior. That it is tied to an attempt to overturn the will of the people is grim, and lends fuel to those who doubt the institutions with authority to constrain the chief executive are up to the challenge.
But in ruling for the former president, the court potentially puts Americans serving this country, in the armed forces and in the federal bureaucracy, in a nebulous legal position. And that could well mean that those in such positions of public trust will one day face the consequences for acting as directed by a president shielded from the same.
