For the Rest of the World, the U.S. President Has Always Been Above the Law

Oona A. Hathaway

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The U.S. Supreme Court’s decision on former President Donald Trump’s claims of criminal immunity has provoked grave warnings about a new expansion of presidential power. On July 1, the Court ruled 6–3 along partisan lines that presidents are immune from criminal prosecution for “official acts” but found that they may still be prosecuted for unofficial acts. “The Court effectively creates a law-free zone around the President,” wrote Justice Sonia Sotomayor in her dissent. “In every use of official power, the President is now a king above the law.”

Many commentators have echoed her critique. The ruling “jettisons the long-settled principle that presidents, like all others, are subject to the operation of law,” observed the legal scholar Kate Shaw. “If the president is a king, then we are subjects, whose lives and livelihoods are only safe insofar as we don’t incur the wrath of the executive,” warned the New York Times columnist Jamelle Bouie. “If Trump, as commander in chief, ordered his troops to assassinate somebody or stage a coup, that would seem to fall within the absolute immunity provision of the court’s decision,” explained the legal scholar Cheryl Bader. Judge Aileen Cannon’s decision on July 15 to dismiss the charges against Trump for mishandling classified documents, while likely to be appealed and overturned, has added to the chorus of concerned voices.