‘The president is now a king above the law,’ Sotomayor warns in chilling dissent

In her dissent against the U.S. Supreme Court’s Monday ruling in Trump v. United States, liberal Justice Sonia Sotomayor listed several acts that she argued the high court’s right-wing supermajority has effectively sanctioned as unprosecutable exercises of presidential authority.

“Orders the Navy’s SEAL Team 6 to assassinate a political rival? Immune,” wrote Sotomayor. “Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”

The high court’s 6-3 decision along ideological lines granted former President Donald Trump “absolute immunity” for acts that fall within the scope of the “responsibilities of the executive branch under the Constitution,” as Chief Justice John Roberts wrote for the majority.

The new ruling leaves it to the lower courts to determine whether the election-subversion acts for which Trump was charged last year in a case led by Special Counsel Jack Smith were “official” or “unofficial.” The Supreme Court took more than four months to decide the case after agreeing to hear it, meaning Trump is unlikely to face trial before the November presidential election.

The 3 dissenting votes (L to R): Justices Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor.

The Associated Press noted that the Supreme Court “further restricted prosecutors by prohibiting them from using any official acts as evidence in trying to prove a president’s unofficial actions violated the law”—a move that Sotomayor condemned as “nonsensical.”

While Roberts acknowledged that “not everything the president does is official,” Sotomayor argued that the majority’s expansion of “the concept of core powers beyond any recognizable bounds” means that “a president’s use of any official power for any purpose, even the most corrupt, is immune from prosecution.”

“Whenever the president wields the enormous power of his office, the majority says, the criminal law (at least presumptively) cannot touch him,” wrote Sotomayor. “Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the president and the people he serves has shifted irrevocably. In every use of official power, the president is now a king above the law.”

Mark Joseph Stern, who covers the U.S. courts for Slate, called Sotomayor’s dissent “one of the most terrified and terrifying pieces of judicial writing I’ve ever encountered.”

Sotomayor expressed “fear for our democracy” as she closed her dissent against the ruling by the Supreme Court’s majority, two members of which have recently faced intense scrutiny and calls to resign for accepting lavish gifts from right-wing billionaires.

“Justice Sotomayor’s alarmed dissent was signed ‘with fear for our democracy,'” U.S. Sen. Sheldon Whitehouse (D-R.I.) said in a statement Monday. “This is a blaring warning to voters of the anti-democratic forces pulling the strings both at the Supreme Court and in the Republican Party.”

“Not only does this decision deprive the American people of knowing whether the former president is guilty of attempting to overturn the last election before they head to the polls in November, it also makes it much harder to hold a former president accountable for illegal acts committed while in office,” said Whitehouse. “The far-right radicals on the court have essentially made the president a monarch above the law, the Founding Fathers’ greatest fear.”

Mark Joseph Stern, who covers the U.S. courts for Slate, called Sotomayor’s dissent “one of the most terrified and terrifying pieces of judicial writing I’ve ever encountered.”

Pointing to Sotomayor’s dissent, U.S. Rep. Rashida Tlaib (D-Mich.) wrote Monday that “it is a dark day for democracy when presidents can commit any crime they want in their official capacity, and these justices are bribed for their decisions.”

“Coup attempts are not ‘official acts,'” she added.

Also writing in dissent was liberal Justice Ketanji Brown Jackson, who warned that “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.”

“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,” wrote Jackson, who criticized the right-wing majority’s “arbitrary and irrational” attempt to distinguish between official and unofficial acts.

“It suggests that the unofficial criminal acts of a president are the only ones worthy of prosecution,” the justice continued. “Quite to the contrary, it is when the president commits crimes using his unparalleled official powers that the risks of abuse and autocracy will be most dire.”

From Common Dreams.
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