[Order David Horowitz’s new book, America Betrayed, HERE.]

President Biden angrily condemned the Supreme Court’s 6-3 ruling, announced on July 1st, regarding the extent to which a former president is immune from criminal liability for acts he performed while in office. 

The case dealt with the presidential immunity issue in the context of Special Counsel Jack Smith’s indictment of former President Donald Trump on multiple charges accusing him of election interference. The charges stem from Mr. Trump’s alleged role in connection with the January 6, 2021 Capitol riot and broader alleged efforts of the former president to overturn the results of the 2020 presidential election. 

You would think from all the hysteria from President Biden and the Left in general that the Supreme Court had anointed Mr. Trump as a king who could do no wrong as president of the United States. But the truth is that the Court’s majority ruling flatly rejected the former president’s assertion that he is entitled to total immunity from criminal liability for virtually everything he had done while in office: “Trump asserts a far broader immunity than the limited one we have recognized.” 

For example, the Court’s majority opinion expressed skepticism that the former president’s alleged pressure on his Vice President Mike Pence to halt Joe Biden’s certification as the next president deserved immunity from criminal prosecution. 

“Despite the Vice President’s expansive role of advising and assisting the President within the Executive Branch,” the majority opinion states, “the Vice President’s Article I responsibility of presiding over the Senate is not an executive branch function. So the Government may argue that consideration of the President’s communications with the Vice President concerning the certification proceeding does not pose dangers of intrusion on the authority and functions of the Executive Branch.”

The Court’s ruling also left open the question of whether Mr. Trump’s speech at the Washington mall on January 6 was delivered in his capacity as the president at the time or in his unofficial, personal capacity as a disgruntled candidate. That question, like others involving Trump’s acts while president, is for D.C. District Court Judge Tanya Chutkan, who is presiding over  this case at the trial level, to decide after her examination of the pertinent facts.

In short, the Supreme Court’s presidential immunity decision may help Donald Trump in some respects by removing some of his actions while president from the threat of retroactive criminal liability but it does not let him off the hook completely. His prosecution may have hit a speed bump and take longer to reach a conclusion but it remains very much alive.

Nevertheless, President Biden claimed that the decision puts Mr. Trump above the law and would give him a free hand to do whatever he wants if he is elected president once again.

President Biden is wrong as usual. His fear mongering is a desperate attempt to divert attention from his disastrous debate performance against Donald Trump as his reelection campaign continues to crater. 

President Biden’s Trump Derangement Syndrome blinds him to the fact that the Supreme Court’s historic decision is far more consequential than its short term effect on Mr. Trump’s fate.  

The Supreme Court has, for the first time, defined the parameters within which any president, from whatever party, can fulfil the office’s core constitutional responsibilities and perform other official presidential acts without fear of being criminally prosecuted after leaving office. The alternative, Chief Justice John Roberts warned in the majority opinion that he authored, would be dysfunctional cycles of tit-for-tat “with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next.”

The Supreme Court ruling did not place the president above the law with king-like powers, contrary to what the three liberal dissenting justices, Democrat politicians, and the left-leaning media would have us believe. The Court’s common sense ruling simply recognizes that no president can effectively carry out his duties as the head of the Executive Branch while constantly worrying that his political opponents will prosecute him criminally once he leaves office.

“The President is not above the law,” the Supreme Court ruling declared. “But under our system of separated powers, the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts.  That immunity applies equally to all occupants of the Oval Office.”

Former President Barack Obama should be relieved by the Supreme Court’s decision. One example of his potential exposure to criminal liability absent immunity involves Mr. Obama’s unilateral authorization of the extrajudicial killing of an American citizen in Yemen that took place in 2011. In effect, Obama used his powers as the head of the executive branch and commander-in-chief to play the role of judge, jury, and executioner all rolled up into one. 

Presumably, Mr. Obama acted based on what he believed was in the national interest because of this American’s terrorist ties. But the reasoning behind former President Obama’s decision to authorize the assassination is irrelevant in the absence of some measure of immunity from criminal liability. Without such immunity, a prosecutor, for partisan or ideological reasons, would be free to charge the 44th president with murder for which there is no statute of limitations.

Likewise, without any immunity for actions President Biden has undertaken in his official capacity, Biden could face criminal charges after he leaves office relating, for example, to his open border and catch-and-release immigration policies. By opening the southern border to millions of illegal immigrants who Biden permitted to be released into the U.S. interior without careful vetting, he allowed violent criminals into this country who have preyed on innocent American citizens. Mr. Biden thereby jeopardized the safety of the American people whom he is sworn to protect. 

At minimum, Mr. Biden could be charged with criminal negligence after he leaves office by prosecutors motivated to seek full justice for the Americans murdered or raped by illegal immigrants admitted into the U.S. and released on President Biden’s watch.

In short, Donald Trump is not the only beneficiary of the Supreme Court’s presidential immunity decision. The decision also benefits both former President Obama, and President Biden after he leaves office, by shielding them from criminal liability for controversial actions they took during their terms as president.

Without some immunity protection, the Supreme Court’s decision explained, “the President would be chilled from taking the ‘bold and unhesitating action’ required of an independent Executive.”

This notion of protecting the president’s ability to take ‘bold and unhesitating action’ is fully in keeping with Alexander Hamilton’s discussion in Federalist #70 of the need for an independent “energetic Executive.”  He wrote that the “qualities in the Executive which are the most necessary ingredients in its composition” are “vigor and expedition.” 

The Supreme Court ruled that certain actions taken by a president in the “exercise of his core constitutional powers” granted to him under Article II of the Constitution are entitled to absolute immunity from criminal prosecution. These constitutional powers that are exclusive to the president “may not be regulated by Congress or reviewed by the courts.”

Examples include a president’s exercise of his pardoning power, his communications with officials within the executive branch that he presides over such as Justice Department officials, and replacing certain members of his administration whom he has appointed.

As for the remaining actions that a president takes while in office which do not directly invoke his core and exclusive constitutional authority, they fall into two categories. They are comprised of other acts performed by a president in his official capacity and unofficial acts performed for his own personal benefit. 

Presidents receive no immunity at all for unofficial acts – for example, taking a bribe for personal gain.  “Like everyone else,” Chief Justice Roberts wrote, “the President is subject to prosecution in his unofficial capacity.” 

However, when a president undertakes to carry out any of his official responsibilities that he shares, for example, with Congress, he must have reasonable latitude in the actions he takes towards that end. Otherwise, he will be little more than a figurehead rather than the head of a co-equal branch of the federal government.

To provide presidents such latitude without giving them complete free rein, the Supreme Court devised a middle ground. It ruled that a president in such circumstances is entitled to at least a presumption of immunity from criminal prosecution for his acts “within the outer perimeter of his official responsibility.”

However, such immunity is not guaranteed. The government can successfully rebut the presumption of immunity from subsequent criminal prosecution for an official act if it can prove that such prosecution would not pose “any dangers of intrusion on the authority and functions of the executive branch.”

The Supreme Court itself did not parse each and every charge against Mr. Trump to determine whether or not a particular alleged act met the Court’s criteria for presidential immunity. Instead, the Court sent the case back to District Court Judge Chutkan to carry out this fact-intensive task “in the first instance.” 

Justice Sonia Sotomayor wrote a blistering dissent that was joined by the two other liberal justices, Elena Kagan and Ketanji Brown Jackson. Using melodramatic rhetoric more appropriate for a demagogue than a Supreme Court justice, she completely distorted what the majority opinion actually said. She grossly mischaracterized the message of the majority ruling this way:  “Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends.”

There is not a shred of truth in Justice Sotomayor’s accusation, parroted by many left-wing progressives, that the majority ruling makes the president “a king above the law” and “effectively creates a law-free zone around the president…”

Justice Sotomayor’s overwrought expression of “fear for our democracy” notwithstanding, the Supreme Court’s presidential immunity decision will be remembered as a landmark defense of the office of the president’s functional independence within the structure of America’s constitutional republic.