The Supreme Court’s three Democratic appointees disagreed with the conservative majority’s ruling that former President Donald J. Trump has some immunity for his official actions, saying their colleagues had made the president “a king above the law.”
Justice Sonia Sotomayor wrote that the majority was “entirely wrong,” adding that beyond the implications for the effort to prosecute Mr. Trump for attempting to subvert the outcome of the 2020 election, this would have “strong” long-term implications for the future of American democracy.
“The court effectively creates a lawless zone around the president, upending the status quo that has existed since its founding,” she wrote, in an opinion joined by the other two Democratic-appointed justices, Elena Kagan and Ketanji Brown Jackson.
By insulating the President of the United States — the most powerful person in the country and possibly the world, she noted — from criminal prosecution when he uses his official powers, he can freely use his official power to break the law and exploit attributes of the United States. his office for personal gain or other ‘evil purposes’.
“Is Navy Seal Team 6 ordering the assassination of a political rival? Immune. Organize a military exchange for pardon? Immune. Immune, immune, immune,” she wrote, adding, “Even if these nightmare scenarios never happen, and I pray they never do, the damage has already been done. The relationship between the president and the people he serves has been irrevocably changed.”
Justice Sotomayor also wrote that the way the majority had applied the new immunity standard to official acts, specifically to Trump’s case, was “perhaps even more troubling.” Its analysis, she added, functioned as a “one-way street”: It helped the defense but offered no help to the prosecution.
For example, she wrote, the majority found that all of Trump’s actions with respect to Vice President Mike Pence and the Justice Department counted as official conduct, but the indictment did not identify any actions as falling into the non-“core” category of official conduct that it said could be prosecuted. Nor did it identify any of the various things that Trump’s team had acknowledged looked unofficial, such as Trump’s interactions with a personal attorney, as clearly private actions.
Justice Sotomayor specifically criticized the majority’s refusal to grant immunity for Trump’s role in organizing fraudulent ballots, pressuring states to undermine legitimate election results, and exploiting the violence of the January 6 riot to influence certification proceedings.
“It is inconceivable that a prosecution for these alleged attempts to overturn a presidential election, whether deemed official or unofficial under the majority test,” would pose any risk of encroaching on the authority and functions of the executive power, she wrote, adding that “The majority could have said the same thing,” but did not.
Sometimes justices conclude their dissents with a soothing and polite qualification, writing, “With respect, I disagree.” Judge Sotomayor instead concluded this harshly: “Out of fear for our democracy, I disagree.”
