Presidential criminal immunity opens the door to dictatorship
Only days before the nation marked its 248th anniversary, the nation’s highest court announced a long-awaited ruling on the question of presidential immunity. While families and communities finalized plans for annual festivities marking the holiday, the nation’s highest court delayed the court term’s most important case to the term’s end.
The 6-3 decision in the case of Trump v. United States, written by Chief Justice John Roberts and announced on July 1 began by setting the case’s framework.
“This case concerns the federal indictment of a former President of the United States for conduct alleged to involve official acts during his tenure in office,” wrote Roberts. “We consider the scope of a President’s immunity from criminal prosecution…The parties before us do not dispute that a former President can be subject to criminal prosecution for unofficial acts committed while in office…They disagree, however, about whether a former President can be prosecuted for his official actions.”
“We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office,” wrote Roberts. “At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity.”
“[T]he President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority,” added Roberts.
How ironic that at a traditional time when citizens and communities across the country celebrate freedom and our rights to life, liberty, and the pursuit of happiness, set forth in the Declaration of Independence and Constitution that this decision would effectively move the country towards dictatorship instead of upholding democracy for this and future generations.
Writing on behalf of the three dissenting Justices (Elena Kagen and Ketanji Brown Jackson), Justice Sonya Sotomayor penned a searing rebuttal to the majority opinion.

“Whenever the President wields the enormous power of his office, the majority says, the criminal law (at least presumptively) cannot touch him. This official-acts immunity has “no firm grounding in constitutional text, history, or precedent,” wrote Sotomayor…[T]his majority’s project will have disastrous consequences for the Presidency and for our democracy.”
“The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding,” continued Sotomayor. “Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be…That is the majority’s message today. Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done.”
“Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop.
“With fear for our democracy, I dissent,” Sotomayor concluded.
The nation’s first Black female Justice, Ketanji Brown Jackson, stated her complete agreement with Sotomayor, and added additional context to the full effects of the majority decision.
“I write separately to explain, as succinctly as I can, the theoretical nuts and bolts of what, exactly, the majority has done today to alter the paradigm of accountability for Presidents of the United States,” stated Jackson. “I also address what that paradigm shift means for our Nation moving forward.”
“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 President cannot be made to do so; he must sometimes be exempt from the law’s dictates depending on the character of his conduct,” said Jackson. “Indeed, 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.
“That point bears emphasizing…Ultimately, the majority’s model simply sets the criminal law to one side when it comes to crimes allegedly committed by the President,” continued Jackson. “Before accountability can be sought or rendered, the Judiciary serves as a newfound special gatekeeper, charged not merely with interpreting the law but with policing whether it applies to the President at all.”
“I worry that, after today’s ruling, our Nation will reap what this Court has sown,” concluded Jackson. “Stated simply: The Court has now declared for the first time in history that the most powerful official in the United States can (under circumstances yet to be fully determined) become a law unto himself.”
Beyond the three dissenting Justices, other organizations and leaders also spoke of their respective concerns.
“This opinion will go down in infamy,” noted Maya Wiley, President & CEO of the Leadership Conference on Civil and Human Rights. “As Justice Sotomayor said in her dissent, ‘It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.’ Make no mistake: This decision, in which the majority includes justices who should have recused themselves as the appearance of bias and partiality was clear, will be viewed by history with scorn.”
On behalf of the Brennan Center for Justice, Michael Waldman wrote the organization’s independent analysis that said in part, “[T]his ruling undoes the restrictions on presidential abuse of power put in place by officials and jurists of both parties since the 1970s.”
“The other major rulings on presidential accountability for legal wrongdoing have been unanimous. U.S. v. Nixon (limiting executive privilege) was written by the Republican chief justice Nixon appointed, and it was unanimous,” noted Waldman. “Clinton v. Jones (opening the president to civil suit even while in office) was unanimous. Let’s grant that Roberts is an institutionalist. He is presiding over the collapse of public trust in the very institution he purports to revere.”
Moreover, this historic decision unfortunately continues a growing and disturbing trend of SCOTUS rulings that together diminish multiple individual freedoms, while expanding powers of both the executive and judicial branches of our government.
For example, in 2013, SCOTUS held in the case of Shelby County v. Holder, struck down key provisions of the Voting Rights Act of 1965 that required federal pre-clearance of proposed voting procedures in areas with a history of voting discrimination. As of 2023, according to the Brennan Center for Justice, 29 laws in 11 states that were previously covered by pre-clearance have now enacted laws that impose voting barriers.
Despite 50 years of women having the right to make their own reproductive choices thanks to the landmark 1973 case of Roe v. Wade, SCOTUS held in 2022 that states had the right to ban abortion. Since that ruling, and according to The Center for Reproductive Rights, 14 states have now made abortion illegal.
Also in 2023, an affirmative action, involving the use of race as a part of admissions standards at Harvard and University of North Carolina, Chief Justice Roberts writing for the majority stated in part, “Harvard’s admissions process rests on the pernicious stereotype that “a black student can usually bring something that a white person cannot offer.”
This January, Gallup polled reactions to the Court’s end of affirmative action; “All racial and ethnic groups are most inclined to think the decision will result in less, rather than more, diversity on college campuses. Black (49%) and Asian (57%) adults are most likely to believe this.”
These cases are only a few that together signal an unceasing attack on democracy and the principles our nation has held dear for 284 years. As the November election approaches, voters must be mindful that failure to participate in these important choices is a forfeiture of the hard-won right to vote – that only came after years of vigilant protests before gaining the right to fully participate in this democracy. Nor should we forget the price paid by earlier generations that endured violence, bloodshed, and bombings.

The late Congressman and civil rights leader, John Lewis (1940-2020) perhaps best summarized what each of us must remember. In a 2019 National Public Radio interview he said, “We have presidents, and the Constitution is our compass. When you see something that is not right, not just, not fair, you have a moral obligation to say something, to do something…We have a mission, and we have a mandate to be on the right side of history.”
Charlene Crowell is a freelance writer.