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We’re in trouble. Real trouble.
I’ve had three days to really think about SCOTUS’s ruling on Monday about presidential immunity, reported by NewsOne earlier this week, and I just cannot shake the terrifying vision of the America my daughter may have to spend the majority of her life in. I shared that sense of worry with one of my mentors, Deborah Small (HLS ‘87, HKS’88), who, after a brief turn in corporate law, has spent her life working in public policy, as an attorney with the ACLU, and later, as a world-renowned expert on drug policy at the intersection of race policy.
One of the most brilliant people I’ve ever had the pleasure to know, I hoped that Deborah could help me tease out the silver lining I couldn’t see, the reason to still have hope especially after the last several rulings issued by a Supreme Court gone rogue, spitting in the face of its own founding fathers. She did not. And I get it.
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Absolute immunity for Presidents? In a nation of laws? It’s literally exact thing that America’s founding fathers went to war against. It’s the raison d’être of the founding of the Republic, as NewsOne noted in earlier coverage. In writing their irrational opinion giving the white guy the right to be a criminal, it was as though they were talking about a hypothetical situation, not a real, live threat to American lives, in particular the lives of those who are already most marginalized in society: Us. Black people. People of color.
Men. Women. Gender-nonconforming. Young, old. Under this Court’s anti-democracy ruling, Richard Nixon would not have been forced to leave office because it would have been just fine and dandy for him to get the Justice Department to help him during Watergate when he interfered with the Democratic process. But that was the 70s. They declined, deciding to instead stand on the side of law.
In an unusual move, Justice Sonia Sotomayor not only wrote the dissent, speaking for Justices Kagan and Brown-Jackson, but read it from the bench to underscore the extraordinary judicial failure by the majority.
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From Justice Sotomayor’s dissent:
I am deeply troubled by the idea, inherent in the majority’s opinion, that our Nation loses something valuable when the President is forced to operate within the confines of federal criminal law. The public interest in the federal criminal prosecution of a former President alleged to have used the powers of his office to commit crimes may be greater still. “[T]he President … represent[s] all the voters in the Nation,” and his powers are given by the people under our Constitution. …
When Presidents use the powers of their office for personal gain or as part of a criminal scheme, every person in the country has an interest in that criminal prosecution…yet the majority believes that a President’s anxiety over prosecution overrides the public’s interest in accountability and negates the interests of the other branches in carrying out their constitutionally assigned functions.
… Imagine a President states in an official speech that he intends to stop a political rival from passing legislation that he opposes, no matter what it takes to do so (official act). He then hires a private hitman to murder that political rival (unofficial act). Under the majority’s rule, the murder indictment could include no allegation of the President’s public admission of premeditated intent to support the mens rea of murder…
The long-term consequences of today’s decision are stark. The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding.
The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution.
Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune.
Organizes a military coup to hold onto power? Immune.
Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune…
With fear for our democracy, I dissent.
In the real world of now, if Trump or any Trump-like person is elected to the office of president, he, she or they could ask any of the departments–including the Department of Defense–to act on his behalf, no matter what that ask is, there’s no stop-gap measure.
A reminder: we are talking about the man who wanted police to shoot BLM protestors (he was told no).
Under the anti-democratic SCOTUS ruling on immunity, not only could Trump have protestors shot with immunity–BLM protestors or students like the ones we saw this year who stood up against genocide–could be legally and publicly executed for exerting their First Amendment rights to speech and peaceful assembly.
The violence that occurred at BLM and the student protests this year, was primarily, if not entirely, instigated by agents of the government. And they would be protected even if they killed one of our unarmed, legally and peacefully protesting children. Killed!
More, the protestors who survived such a potential massacre, could be charged under the anti-terrorism act if the President deems them to be terrorists—even without evidence, because the rulings of late, do not rely on evidence or even basic common sense.
And what of writers, journalists, artists and academics whose words are deemed a threat to the United States, their work acts of terror? Black writers, journalists, artists and academics in the age of critical race theory disinformation and disparagement, would likely be first on the firing line. We who have the most to gain from a realized democracy and whole-cloth truth.
It makes me wonder several things, two of which are what country might be safe enough for my family to move to and thrive in; and what will they say at the inauguration if Trump wins and is told to place his hand on (I guess the Trump) bible and say:
“I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”
Monday’s ruling tells any future president that they in fact need not preserve, protect and defend anything except themselves.
SEE MORE:
SCOTUS Immunity Decision Underscores The Significance Of Trump’s Hush Money Conviction
Op-Ed: Recent Racist Mass Shootings Spotlight Age-Old Link Between White Anxiety and Racial Violence
