The Supreme Court’s Ruling Imperils American Foreign Policy

The extraordinary departure by the Republican majority on the Supreme Court regarding presidential immunity—which understandably elicited shocked reactions such as from Justice Sonia Sotomayor (“With fear for our democracy, I dissent.”) and Washington Post legal columnist Ruth Marcus (“God save us from this dishonorable court.”)—will have primarily domestic impacts. However, the ruling’s implications for U.S. foreign relations are also significant. 

Foreign observers are taking notice. Law Professor Keigo Komamura of Keio University in Japan told the New York Times, “If the U.S. president is free from the restrictions of criminal law, if he has that level of criminal immunity, the other leaders of the allied nations cannot trust the U.S. We cannot maintain a stable national security relationship.”

The corruption trial of Senator Robert Menendez (D-NJ) suggests one of the several ways in which criminal behavior by powerful U.S. officials can have negative effects in foreign countries, both for the foreign country and for the United States. Among the charges against Menendez is that he and his wife received payments from an Egyptian businessman in return for Menendez using his considerable influence as chairman of the Senate Foreign Relations Committee to get the Egyptian government to grant the businessman an exclusive license to export halal meat to the United States. Menendez allegedly also handed favors to the Cairo regime, such as smoothing the shipment of U.S. arms to Egypt and revealing sensitive information about U.S. embassy staff.

This corrupt affair was bad for the United States by distorting our arms export policy, compromising the security of embassy employees, and raising prices for American consumers of halal meat. It was bad for Egypt by injecting further corruption into the country, making Egyptian purchases of munitions subject to influences other than Egyptian security, and excluding other Egyptian meat vendors from the American market.

An American president would be at least as well positioned as Menendez was to swing this kind of corrupt deal. However, the Supreme Court’s ruling probably would make it impossible to prosecute a former president for such corruption because it bars the introduction of any evidence involving loosely defined “official” functions, even if the alleged offense is decidedly unofficial (This prohibition was too extreme for Justice Amy Coney Barrett, who dissented from that portion of the majority’s ruling). Prosecutors could talk about the cash or gold or whatever had been given to the former president but not about what he had done in return for such payments.

Donald Trump is probably the next president to operate under the court’s ruling. Even before the ruling, the prospect of Trump returning to power had generated much heartburn among U.S. allies. The many reasons range from the prospect of more reneging on U.S. commitments to more cozying up to authoritarians whom Western democracies have considered to be troublesome adversaries. The concerns of allied governments are reflected in polls of their publics, which showed opinion of the United States dropping to record lows in many countries during Trump’s presidency before recovering when Joe Biden entered office.

The court majority accentuated the foreign heartburn with its slow-rolling of the immunity issue in support of Trump’s tactic of delay (with the Trump-appointed judge in Florida who is handling the classified documents case taking a similar go-slow approach), leaving almost no chance for a trial and verdict before the November election and thus increasing Trump’s likelihood of winning the election. That Trump is the subject of multiple criminal indictments also makes him the most likely exploiter of the huge loophole for criminal behavior by a president that the court has just carved.

Although Menendez-style corruption might increasingly infect the presidency, the most serious foreign consequences of prospectively excused criminal conduct by a president involve the deterioration of the United States’ position as leader of the free world and powerful exemplar of the values and conduct associated with that position. Put bluntly, the immunity conferred by the court majority moves the United States closer to becoming a criminal regime or at least being seen as one. As Professor Komamura comments, “This may be rude to the U.S., but it is not that different from Xi Jinping in China. The rule of law has become the rule of power.”

The specific consequences include individual governments distancing themselves from Washington out of general distaste over what they see happening in Washington or fear of being tainted by contact with criminal behavior. They include a further erosion of whatever “city-on-the-hill” status the United States still has as a lodestar for democracy and freedom worldwide. They also include a major reduction in the credibility of any U.S. attempts to call to account corrupt or criminal behavior in other countries.

The allies can look more specifically at the federal crimes with which Trump has been charged in calibrating their relations with a future Trump administration in light of the immunity ruling. The charges concerning mishandling of classified documents have direct implications for the sharing of sensitive information between governments. Trump, as president, already had blithely revealed to the Russian foreign minister sensitive intelligence that reportedly had come from a foreign partner. With the Supreme Court having now told Trump that he can never be prosecuted for the “official” act of doing whatever he wants to do with classified material, he will be more unrestrained than ever to compromise the secrets not only of this nation but also of foreign partners. The understandable response of the partners is to become less willing to share such secrets with the United States.

The other federal case against Trump concerns his attempt to overturn the result of a democratic election, with much of the damage to American democracy—and America’s lodestar role in promoting democracy worldwide—having already been inflicted by Trump’s actions after the 2020 election. But exercising the rule of law can mitigate the damage. Brazil had in 2023 its own version of the January 6 insurrection, but the losing Trump-like presidential candidate whose followers committed the violence, Jair Bolsonaro, enjoys no immunity. He is the subject of multiple criminal charges and has already been barred by Brazilian courts from running again for public office until 2030.

With the immunity that the Republican majority on the Supreme Court just gave Trump, he is unlikely to have the same fate as Bolsonaro. The United States is thus behind even Brazil—which, as recently as 1985, was under a military dictatorship—regarding this vital aspect of democracy and the rule of law. As the Japanese professor observes, in this respect, it is hard to see what the Supreme Court majority has wrought as being much different from what goes on in the dictatorial regime in China.

Paul R. Pillar retired in 2005 from a twenty-eight-year career in the U.S. intelligence community, in which his last position was as the National Intelligence Officer for the Near East and South Asia. Earlier, he served in a variety of analytical and managerial positions, including as chief of analytic units at the CIA, covering portions of the Near East, the Persian Gulf, and South Asia. His most recent book is Beyond the Water’s Edge: How Partisanship Corrupts U.S. Foreign Policy. He is also a contributing editor for this publication.

Image: Evan El-Amin / Shutterstock.com.