Most of what is terrible about the Supreme Court decision declaring that Presidents have immunity from prosecution will be discussed at length for months, especially as the 2024 Presidential election draws closer.  Let me suggest some important points to remember.

You will hear a lot about the rule of law, but there has never been a clear idea about what that means.  Lawyers have always gotten rich, and the rich have always found a way in the effort to twist and turn the law to mean what suits them, while those without sufficient means have been forced to make plea bargains even when there is simply a possibility that they might be convicted, regardless of their actual guilt.  Every law on the books has been written by flawed human beings, who have relied on language that is never absolute in its meaning.  The rule of law is a rule that says, “whatever the law says, guilt and punishment are a function of class, not of the law.” 

There will be much discussion, also, of the court’s “conservatives.”  Don’t be fooled by the word.  This decision is not a conservative one, it is a radical one, arrived at by justices who have expressed extreme right-wing views on a wide range of issues, and who have no interest in setting their views aside to adjudicate the Constitution, nor in recusing themselves when there are obvious conflicts of interest.  At least four of them were appointed to the court specifically so that they might wreak havoc with what had been established law and Constitutional rights.

It would be pointless, in fact, to look for the Constitutional underpinning of this decision, though many pundits may try.  The majority didn’t really even try to justify the ruling on Constitutional grounds.  The principal arguments for the ruing involve an imagined future in which Presidents will be afraid to make bold, decisive decisions and take necessary actions because they will fear prosecution when they leave office.  Yet, in more than 200 years, over the terms of 46 different Presidents, only one has ever felt the need for this kind of protection against legal accountability.  And he wants the Presidency back, with this new lack of constraints that will allow him to become a dictator.

But the most disturbing thing about this ruling is that its justification ignores a simple fundamental idea, that a bold and decisive action is not the same thing as a criminal one, and never should be.  The court has essentially argued not that Presidents need to be able to act boldly, but that they need to be able to act illegally, with abandon.  A President with immunity is a President who does not have to think carefully about their decisions, weighing not just the actions, but all of the larger implications and consequences.  Such a President need only decide that their actions suit them.

Apparently, the Court has given themselves the power to determine when a President’s actions are within the realm of their official responsibilities.  This means that any attempt to prosecute a President (in or out of office) would invariably hinge on proving that the actions were not official, and then having to argue that through the entire legal system until it eventually reaches the Supreme Court where it could simply be tossed out.  How many Attorneys General or prosecutors would be willing or able to spend that much time and tax-payer dollars on what would likely be a fruitless task?

The decision is not now absolute for all time, though it will not be easy to fix.  It is, however, more imperative now than ever that the 2024 election reject the right-wing extremists decisively.  We need to elect Democrats to keep the White House, keep control (and expand it) in the Senate, and retake the House of Representatives with a clear majority.  We also need to keep or take leadership and control of governments at the state level in a large enough majority of states to pass a Constitutional amendment, and that amendment needs to state as clearly and unequivocally as possible, that Presidential actions, regardless of their justifications, regardless of their official nature, may be prosecuted if they are perceived to be violations of the Constitution or the law.  Presidents shall never be above the law, but will have the rights and responsibilities as every other citizen, including the right to be considered innocent until proven guilty, and to defend themselves in a court of law – or ask for a plea bargain.