There’s been a lot of outrage in response to Trump v. United States - well deserved, I think. One part of the outrage comes from the ad hoc reasoning in this case, totally inconsistent the court’s previous jurisprudence - there’s no originalist case for presidential immunity beyond some core actions. The other part comes from the consequentialist side - that this will, among other issues, empower Trump to do terrible things.
There have been some counterarguments to the consequentialist side. Was the threat of criminal prosecution really going to disincentivize Trump? Doesn’t this also make it harder for him to prosecute Biden? etc.
I think that’s all wrong. As the subheader says: this is good for Trump and bad for democracy, don't overthink it. This is my explanation for why.
It does not matter if Trump prosecutes Obama/Biden
This is a pretty simple point. Biden and Obama are not going to seek political office anymore. It does not matter if he prosecutes them.
This is true for Democratic presidents in general going forward. Trump is going to continue to seek the presidency until he dies or ends up in jail. Democrats are going to seek the presidency, potentially serve out 1 or 2 consecutive terms as president, and then retire and never seek political office again. It does not matter if they get prosecuted.
If Democrats win in 2024, it’s important that Trump ends up in jail
I wrote above that Trump is going to continue to seek the presidency until he dies or ends up in jail. It’s important that one of those happens, if he doesn’t win in 2024.
Had SCOTUS ruled that there is no or limited presidential immunity, there’s a good chance that ends up in jail by 2028, specifically in the DC case. The trial starts in late 2024, finishes in early 2025, sentencing is a month later, then that leaves a few years for appeals, assuming SCOTUS doesn’t find some excuse to overturn it. (Of course given Trump v. Anderson, we know more about the blatant partisanship of the court so there’s a good chance they overturn it, but yeah). Now, they’ll probably have to rework the indictment to get around evidentiary rules for official acts, and the whole thing might just get thrown out.
Predicting 2028 GOP conditioned on trump losing in 2024 is hard, but I reckon ending up in jail reduces his chance of winning the 2028 nomination by at least 30%. That’s a big deal!
Trump v. United States makes it more likely Trump will try to do horrible anti-democratic things as president
Ok so this is the most hotly disputed point. To me, it’s pretty obvious that Trump v. US will make a number of bad scenarios more likely.
The majority opinion did not respond to Sotomayor’s point that this opinion makes it legal for Trump to call Seal Team 6 to assassinate a political opponent. This is because a number of them, potentially 5, believe this would have immunity. I think it follows directly from the opinion that it would have immunity. The president is commander in chief, so there’s a good chance the majority would rule that using the military against political opponents is a core power, but even if not it seems overwhelmingly likely that this is an official act. And does making it illegal for the president to call Seal Team 6 on someone pose no “danger of intrusion on the authority and functions of the Executive Branch”, given that you aren’t allowed to consider motives here (ie, the person in question being a political opponent)? I would have to conclude no. Such an act would be immune from prosecution.
So Trump goes and tells his advisor that he wants to assassinate Gretchen Whitmer. Without Trump v. United States, the advisor tells him no, that is totally against the law. Now, the advisor - if loyal enough - tells him “ok, but you’ll have to pardon me for it”. How likely is it that Trump attempts assassination? IDK. I think it’s fairly unlikely, but definitely not out of the question. Maybe 10%. A lot of the rhetoric from people in GOP politics has been chilling.
People in GOP politics could also feel pressure because the opinion. Mitt Romney said that he was leaving the Senate in part because of threats to his safety. Now that SCOTUS has ruled in a way that Trump no doubt understands to mean he is totally immune in cases like this, it seems quite rational for other GOP anti-Trump figures - eg, Susan Collins or Lisa Murkowski - to fear for their safety.
That’s not the only situation worth fretting over, either. Probably even more troubling is, as Sotomayor points out, the threat of Trump instituting a military coup to keep power. Another thing that is fairly unlikely but not impossible. This I think is less likely to get presidential immunity, but there’s still a good chance it does. And honestly it doesn’t matter if it does or not, it matters if Trump thinks it does or not. And very likely he does. Trump deals in absolutes.
SCOTUS sending a signal that political assassination and coups are maybe-to-definitely legal is really bad, don’t overthink it. These are real threats in the next Trump administration (and beyond) that SCOTUS just made more likely.