Berkeley scholars: Supreme Court immunity ruling poses risk to democracy

A pair of scholars at the University of California, Berkeley (UC Berkeley) warned that the Supreme Court ruling on presidential immunity poses a “direct threat” to democracy and the rule of law and raised concerns about what a second term under former President Trump could look like.

The Supreme Court handed down the 6-3 decision Monday, ruling along ideological lines that presidents have absolute immunity for actions that fall within the core responsibilities of their office and are “at least presumptively immune” for all other official acts.

“I didn’t expect such a broad definition of absolute immunity for a president for criminal acts,” Berkeley Law Dean Erwin Chemerinsky said Tuesday. “While the court leaves many issues unresolved, it is a dramatic and stunning affirmation of broad, absolute immunity for a president.” 

The decision, argued Chemerinsky and Berkeley political scientist Terri Bimes, “put the president largely above the law in a law that was never written into the U.S. constitution or established in more than 200 years of legal precedent,” per a press release from UC Berkeley.

The scholars predicted the ruling could bring about a crisis in the next presidential term, warning that Trump, if reelected in November, could pursue political opponents under new protections. Trump has repeatedly committed to seeking revenge against political opponents and those who brought criminal charges against him and his allies.

Bimes, a scholar in the history and operation of the U.S. presidency, described the ruling as “dangerous.”

“The decision seems to permit the president to use the power of the office to commit acts that are illegal, that are criminal,” Bimes said. “The fact that these actions are being taken in the name of the presidency, that they’re official acts, makes them immune from prosecution. That is really problematic.” 

The scholars further asserted the high court ruling could have long-term, fundamental implications for the office of the presidency, boosting its power and increasing the risk for more authoritarian leaders.

The scholars’ concerns echo those of several Democrats, who argued it will embolden future presidents to break the law with impunity. The Democrats have long argued that, under the Constitution, no one — not even the president — is above the law. By ruling that Trump is protected from prosecution for certain actions, the Supreme Court violated the intentions of the nation’s founders, the Democratic critics argued.

Chemerinsky pointed to a hypothetical situation raised by Supreme Court Justice Sonia Sotomayor in her dissent, in which she suggested Trump could use his official power to order the Navy's Seal Team 6 to assassinate a political rival.

“If the president were to call out the Navy Seals to assassinate a political rival, since he’s using his power as commander in chief, that would be absolute immunity,” Chemerinsky wrote. “The president could use the Department of Justice to seek retribution and engage in politically motivated prosecutions — that would be protected by absolute immunity. 

“There’s certainly a gray area in terms of things that are at the outer reaches of a president’s power,” he added. “But even there, the Supreme Court says there’s presumptive absolute immunity.” 

Bimes later noted the ruling suggests the courts will no longer be able to restrain a “rogue” president.

“It’s more of a personal office. The president can use all the powers of the presidency for whatever he wants,” Bimes said. “So we really need the courts to step in to help control the president, to make the president more accountable. Now I’m not so sure that we can rely on that — I’m not confident. I’m worried about our democracy because of the character of Donald Trump.”

The high court’s ruling handed Trump a win as he faces a federal criminal election subversion case brought by special counsel Jack Smith. The decision is likely to delay the trial, first sending the case back to a lower court to determine whether his actions on Jan. 6, 2021, merit protection from criminal prosecution for decisions made while in the White House.