This is the Way Democracy Ends

“This is the way the world ends. This is the way the world ends. This is the way the world ends. Not with a bang but a whimper.” Actions have consequences. Keep the lights on all night? You’ll have a higher electrical bill at the end of the month. Take a longer shower? You’ll have to pay more to the water company. Rob a bank? You get the idea. That is my most synthesized understanding of our social contract. We all operate under a collection of assumptions that if we act in a certain way, there will be certain outcomes. This system is not by any means fair, balanced, or equitable, but it is consistent. It is consistent because of that initial maxim. It has never been a secret that a certain class of people in this country, and all across the globe for that matter, operate under a looser version of this contract. Their actions can sometimes have lighter consequences, or their action-to-consequence ratio can sometimes be skewed. But the simple truth remains: we all answer to someone. Six individuals, who were not elected and who cannot be easily removed from their positions, decided that the simple truth I have presented is not a universal one. To use their own words:

“Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts.”

And just like that, our contract has been broken.

To be clear and avoid any misinterpretation: Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, Kavanaugh, and Coney Barrett have, with one monumental decision, undermined the Framers’ intent for this country while claiming to honor their legacy. This stance is historically inaccurate and contradicts the textualist approach they’ve championed for over 25 years. Even setting aside the argument that the Framers would have explicitly included presidential immunity if they intended it, we can look to the numerous limitations they placed on the executive office. Having just fought a war to overthrow tyranny, the Founders deliberately constrained presidential power. While not exhaustive, key constitutional provisions limiting executive authority include Article I, Sections 7, 8, and 9; Article II, Sections 2 and 4; and Article III. There is one more section of the Constitution worth noting, and the Supreme Court would seem to be in agreement because they referenced it seven different times in the majority opinion, and that is Article I, Section 3, Clause 7, or the Impeachment Judgment Clause. Pay attention to it because those few lines within the supreme law of the land are the most amount of consequences that a select few will ever get to face within this country. The clause reads as follows:

“Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.“

You’ll notice that I’ve crossed out the latter part of the clause. Apparently, six of our nine Justices determined that to be extraneous text. As an ultimate safeguard for the most powerful person in the country, it was determined that “removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States” is a wholly sufficient consequence for the actions of a president, current or former, for any crimes they might have committed while in office. Sorry, while carrying out “official acts.” Although Constitutional Law might have been one of my least favorite courses (I’m starting to wonder if the same is true for Justice Roberts and his five concurring cronies), I happened to thoroughly enjoy Criminal Procedure, so let’s talk through a hypothetical. I am the CEO of MoneyCo. While CEO, I embezzle $3,000,000, sexually harass the staff, run somebody over in the company car, and sell company secrets to the competitor. After some time, I step down. The DA’s office has been building quite the case against me and has countless pieces of evidence that could prove everything that I’ve done. They have witness testimony, bank receipts, police reports, and everything in between. I’m charged, we go to court, and I’m found guilty. The sentence? Removal from the CEO position that I no longer have. And that is the most they can do under the law. This is what they mean when they say “absolute immunity.” This is their justification. This is their “backstop.” This is the ultimate protection against tyranny for the American people. And you’ll notice that I keep using the term “tyranny.” I recognize that it is a bit of an antiquated term. I suppose that is just my way of indulging the ridiculousness that is strict textualism, at least in my humble view. But let me use a more modern term, something more apt. This is the best the Supreme Court is leaving us against fascism. But don’t worry, they acknowledged this as well:

“Unable to muster any meaningful textual or historical support, the principal dissent suggests that there is an ‘established understanding’ that ‘former Presidents are answerable to the criminal law for their official acts.’ Post, at 9. Conspicuously absent is mention of the fact that since the founding, no President has ever faced criminal charges—let alone for his conduct in office. And accordingly no court has ever been faced with the question of a President’s immunity from prosecution. All that our Nation’s practice establishes on the subject is silence.”

But you’re telling me, Justice Roberts, the best that the Court is able to muster in response to two centuries of judicial inaction is codified judicial inaction? I view the assertion that we’ve never been faced with Presidential criminal charges in two lights: one of naiveté and one of pessimism—both of which lead me to similar destinations. The first being that we never had to face that question until we had a president so conspicuously corrupt and criminal that it was a matter of when, not if, we would be faced with such questions. The latter being that we’ve existed in a system itself so corrupt that it’s been unable to address such questions until we had a president so conspicuously corrupt and criminal…well, you get the idea. Regardless, under both of these scenarios, the outcome should never have been absolute immunity but rather finding a way to hold this office absolutely accountable. So where do we go from here? Write to our congressperson? Take to the streets? Sit in solemn contemplation? Maybe. Supreme Court decisions can be reversed through federal legislation, but that takes a quite literal act of Congress. But here is my request: do not let this go the way of the 24-Hour News Cycle. The Supreme Court has released some monumental decisions this week that have eroded the fabrics of our democracy, and I do not say that lightly. They have ostensibly criminalized homelessness, stripped away most authorities from federal agencies and placed them in the hands of the federal courts (the heavily Republican-appointed federal courts), and have now made Kings out of Presidents. I’ll leave you with the opening paragraph of Justice Sotomayor’s dissenting opinion, hopelessly etched in the losing corner of our dying judicial branch:

“Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. Relying on little more than its own misguided wisdom about the need for ‘bold and unhesitating action’ by the President, ante, at 3, 13, the Court gives former President Trump all the immunity he asked for and more. Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent.”