The Washington Post on1st July published an article, "Supreme Court’s Trump immunity ruling poses risk for democracy”. The article was written by correspondent Patrick Marley who wrote,” the court’s decision raised fears that a future President will be able to act with impunity because official acts of the President have been deemed off limits from prosecution.”  The verdict caused similar  consternation  among people, legal luminaries and experts alike.

The Supreme Court decision in 'Trump Versus United States' is dangerous  and a risk to future America since it gives the U.S. President broad immunity from criminal prosecution by tremendously enhancing the power of the President on the one hand and concurrently reducing accountability of the President on the other. Trump was quick to acclaim it as a victory. ‘’Big win for our Constitution and democracy. Proud to be an American”, he said.

The verdict by 6 against 3 judges could not  have come at a better time for Trump who is the Republican nominee for President in the run up to the American election in November. Presently, there are 34 felony convictions besides charges of fraud, felony, election subversion and obstruction against him. A legal system that had dealt  severe blows to Donald J Trump in the last few months has just granted a fillip to his campaign for Presidency. It now appears that the Supreme Court whose conservative super majority that was created and cemented by Trump’s nominations is reaping dividends. Now he has two reasons to smile.

 The Supreme Court’s order now arms the former President in a way that he shall be partly shielded from prosecution in connection with his efforts to put impediments to avoid an indictment in the transfer of power after the 2020 elections. It must be said though  that the major ratio of the ruling : “that Presidents would be entitled to substantial protection for official acts”, was expected by  political and legal fraternity for a long time. But here’s why it is dangerous and no one could have reasoned better than one of  the dissenting Supreme Court Judge, Sonia Sotomayer who observed that this newly fashioned Presidential immunity,”lies about like a loaded weapon” for any President who wishes  to place his own interests, his own political survival or his own financial gain above the interests on the nation”. A President “orders the Navy’s SEAL Team 6 to assassinate a political rival? Immune. Organises a military coup to hold on to power? Immune. Takes a bribe in exchange for a pardon. Immune. Immune. Immune. Immune.”

Now imagine the  possibility of Trump being elected again as President in January 2025. Armed with the  verdict here’s why experts believe it will be dangerous. Having removed a major check on the office of the Presidency he can weaponize all apparatus of the Government at will and unleash them against those he views as inimical to him and his interests and with full impunity.

A trial in the case will in all probability begin in November. And in case Trump wins, it is highly likely that the U.S. Justice department will drop the case and Trump’s advisers assert  that this is almost a certainty. President Biden is left with not much except professing  that this ruling will help in his efforts to describe Trump as dangerous, recalcitrant  and an existential threat to the country since law or Constitution holds no meaning to him. He will continue to stretch systems as far as they can  go  or even further  being beneficiary of the Court’s ruling now.       

In an interview with Fox News’s website, Trump asserted that he has been “harassed” by Democrats, including former President Barak Obama and President Biden, “for years’. “And now the Courts have spoken”. Further adding, “Now I am free to campaign like anyone else.  And we will make America great again”. 

 Let’s now go back 50 years to July 1974 and see what the U.S. Supreme Court ruled  then about Presidential immunity. They rejected the  extravagant claim of Presidential immunity.  I am recalling the tenure of former US President Richard Nixon, and the  infamous Watergate scandal, an epoch in American history. He engineered  to have the court excuse him from producing White House tapes in conjunction with  special prosecutors of the Watergate break-in and later cover-up. Nixon never faced criminal charges for his involvement in the  Watergate tapes since President Gerald Ford granted him a “full, free and absolute pardon,” an act that Justice Brett Kavanugh lauded during the oral argument in the present Trump’s case. 

 The Ford-Nixon pardon 50 years back is testimony of an era when  ex-Presidents could face  trial for their crimes in office. That reasoning endured till last week. It should be recalled that when Republican Senate leader  Mitch McConnell voted to acquit Trump after an impeachment trial for incitement of insurrection, the Chamber voted 57-43 and they  needed 67 votes for conviction, stating that, “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.” Last week the  US Supreme Court radically refashioned the settled understanding of accountability of ex-Presidents.

This case is about the Supreme Court as much as it is about the President of United States of America. The Supreme Court announced that an important mechanism of accountability, criminal charges under the statutes passed by the Congress, is almost entirely unavailable in the context of former Presidents of U.S. Today what is being said is that a court willing to declare the U.S. President beyond the reach of the law, regardless of the actions of either the President or Congress, could use the same power to cloak itself in the same immunity from legal process - civil as well as criminal. None of the Court’s precedents support this.

Lately,  the Supreme Court has been displaying an interesting opinion when faced with a situation of being held to account by outside entities, in particular the Congress. The most flagrant of these was Justice Samuel Alito’s statement in the Wall Street Journal in July 2023, about the Congress and the Supreme Court : “I know this is a controversial view, but I am willing to say it,” Justice Alito said. “No provision in the Constitution gives them the authority to regulate the Supreme Court- period”, Justice Alito was obviously referring to the ‘Congress’. If  the Judge was alluding to replacing “President” for the “Supreme Court”  then that’s the  Supreme Court’s decision in the last week. In short the U.S. Supreme Court has created a ‘lawless Presidency’. This should ring alarm bells.

Let’s talk about  Trump’s second reason to smile. The first Presidential debate of  2024. Touted as America’s worst Presidential  debate  in the run up to the election we saw  a fumbling and incoherent President Biden debate a  wilful Trump. In an  endeavour to make ,’’American great again’’ let the words of Justice Sonia Sotomayor resonate. She said, “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 rest of us must abide will not provide a backstop”. Justice Sonia Sotomayor further wrote, “every use of official power, the President is now a king above the law.”

Writer, Rajiv Chavan, is a Senior Advocate & Former President - Advocates Association of Western India (2013-2015 & 2015 - 2018)