A changed America and a less constrained President

The new legal landscape makes the issue of the character and capacity of each individual who would be President even more critical.

Written by

Michael Shoebridge

The latest US Supreme Court decision granting US Presidents wide ranging immunities even when committing criminal acts will further divide America, but it also empowers the Trump campaign. It will encourage Trump to wield Presidential power without constraint if he is elected in November.

The decision by the 6 conservative judges, with the 3 Democrat-appointed judges dissenting, reinforces concerns that the Court is now openly partisan.  That deepens damage to the American justice system already caused by claims that other court decisions – like the recent one convicting Trump of a criminal felony – were politically motivated.  The decision also throws prosecutions involving Donald Trump into disarray by resetting foundational assumptions about presidential immunity, and certainly delays any cases until after the November election.

At the heart of this new ruling is an extraordinary assertion that any ‘official act’ by a US President is absolutely or at least ‘presumptively’ immune from criminal prosecution. That presumption will be very difficult to overturn as the Court ruling prohibits any information about a president’s motives or intent being used as evidence if that evidence involves ‘official acts’.  So, any classic conflict of interest where a President uses official power to pursue their own personal interests will be immune, because such a conflict situation will always involve a mix of official and unofficial acts and interests.

The majority ruling bluntly says ‘In dividing official from unofficial conduct, courts may not inquire into the president’s motives’. Boiling this down, Justice Sotomayor’s dissenting judgement says this means a US president can now order a Navy SEAL team to kill a political opponent and be immune from prosecution, as directing the military is a core ‘official act’ and the president’s motive for the order cannot be questioned.  It’s hard to see how that analysis is wrong.

Corrupt or criminal conduct that any government official would go to jail for here in Australia is now possible for a US President to engage in. A president can now even boast about their criminal conduct without fear of prosecution, as long as that criminality is mixed in with using their official office and powers.

Before this ruling and even during his first term, Donald Trump railed at any constraints on his power and admired authoritarian leaders like Vladimir Putin and Kim Jong Un, seemingly because they had none of constraints democracies impose on their leaders.  This ruling will encourage him to envy them less and use his power more should he be re-elected in November. 

Before the ruling it was already apparent that Trump was intent on having none of the ‘adults in the room’ who gave him wise and at times restraining counsel in his first term – Pentagon chief Jim Mattis, National Security Adviser John Bolton and Secretary of State Mike Pompeo being on that list. Instead, in recent months he has had a queue of people turning up offering him their services to help him maximise his use of presidential authority at the expense of the courts and the Congress.  The Supreme Court has just catalysed and accelerated all that. We are seeing the start of a larger tilt in power in the US system away from any ‘co-equal’ Congress towards the person of the President.

Almost anticipating a second Trump term, the 6 majority judges criticised Justice Sotomayor’s dissent as “fear mongering on the basis of extreme hypotheticals about a future where the President feels empowered to violate federal criminal law”.  It is entirely predictable that Donald Trump will indeed feel so empowered, though, and him becoming President in November is hardly an extreme hypothetical.

So, what does this mean for the election campaign and for America after that? Donald  Trump and his supports are feeling vindicated and energised. Mr Trump is seeing it as endorsing his claim that he has been a political victim in prosecutions where he now will claim immunity – he’s already seeking to use the decision to overturn his guilty verdict in the Stormy Daniels hush money case.  And Trump supporters who plan to take advantage of expanded presidential power should he win will be encouraged to be more ambitious.  The Heritage Foundation’s Project 2025 architects can look forward to strong legal ground for decisions by a Trump president implementing its. Agenda, with the decisions being unreviewable by the American legal system.

Biden’s supporters will seek to use this latest decision coming on top of the court overturning the iconic Roe v. Wade abortion case to demonstrate the danger to American democracy from a hyperpartisan conservative Supreme Court.  Responding to this latest decision, Biden has stopped defending judicial independence and integrity, saying “This decision today has continued the court’s attack in recent years on a wide range of long-established legal principles in our nation, from gutting voting rights and civil rights to taking away a woman’s right to choose”.  The Supreme Court’s future is now in the middle of the US election campaign. Biden may even foreshadow appointing extra judges to rebalance the court – that was done back in the 1860s and Franklin Delanore Roosevelt threatened to do it again when a partisan court was obstructing his New Deal in the 1930s.

I’m sceptical that this court decision will energise voters to come out in droves for Biden. Democrat voters’ depression about the Biden campaign was strong before his fumbling debate performance. That will remain the dominant dynamic for him, against a background of growing calls for him to stand down. 

Many Americans will see the decision as a sensible reset in power away from Congress and the courts towards the president and will reject the dissenting judges’ fears as showing their political leanings. Others will endorse the concerns of those same judges. Not all of either category will turn out to vote for Trump or Biden.  Voter turnout and lower engagement than in 2020 will be a big factor in the upcoming election.

It’s pretty clear, though, that the decision will energise and galvanise pro-Trump voters. 

Undecided voters seem likely to be split between those horrified by the decision and those who see this as simply validating that the US legal system is already politicised – by both Democrats and Republicans. That shrinks the pool Biden’s campaign might try to reach.

Overall, a second Trump term is more likely today than it was before this court decision.  And a President Trump 2.0 will feel vindicated, empowered and unconstrained in a very personal way during that second term – even more than he had indicated before now, for good and ill. 

For Australia, that would mean a highly individualistic US President being the central decision maker in all matters about our alliance at a time when stability, purpose and consistency seem the primary requirements for success.

The traditional way of managing our alliance relationship with any US Administration has been to engagement beyond the particular president with the other levers of power in the broader system. That will remain important, but is less useful now that the power wielded by the person of the President has been magnified, lessening the influence of the other parts of the US system, notably Congress and its influential committee system. US allies and partners in Europe and across our wider Indo Pacific region will be making the same calculations. 

In the event that he wins in November, diplomacy with America seems likely to be focussed on successful Trump whispering against the shifting background of his interests and directions.

The new legal landscape in the American political system created by the Supreme Court judgement makes the issue of the character and capacity of each individual who would be President even more critical than before.   US voters thinking this through with the candidates they have face a choice I don’t envy.

A version of this article was first published by Defence Connect.