Last spring, then–presidential nominee Donald Trump asked the Supreme Court to grant him criminal immunity for all his official acts while he was in the White House. Ignoring the ominous warnings of the Democratic-appointed justices, Chief Justice John Roberts and all the other Republican appointees agreed. On July 1, 2024, former presidents became immune from prosecution for essentially all official acts of the job of president. The only check is if the justices themselves decide a particular act is prosecutable.
In his majority opinion, Roberts justified his grant of criminal immunity as rooted in the framers’ desire for a “vigorous” and “energetic” executive who shall have “‘the maximum ability to deal fearlessly and impartially with’ the duties of his office.” For historians, this is bunk. “While the Founders had a range of ideas about the scope of executive power, none of those ideas included
conferring immunity on the President in the circumstances
at issue here,” scholars of the country’s founding wrote in an amicus brief that Roberts ignored. “Petitioner’s argument to the contrary is not
historically credible.” As presidential historian and executive director of the George Washington Presidential Library Lindsay Chervinsky told me, of Roberts’ immunity ruling, “historically, it has zero basis.”
So now, in the first weeks of President Trump’s second term, we are witnessing a “vigorous” and “energetic” executive and his minions who have been given license to remake the government without bothering to follow the law.
Trump is firing civil servants, independent agency commissioners, and inspectors general, despite laws to the contrary. His administration has attempted to illegally halt billions in federal aid payments, in contravention of Congress’ power of the purse. And he has empowered Elon Musk, a billionaire whose business empire is tied to federal government contracts and investigations, to gut the civil service, access the country’s sensitive payment systems, and, in so doing, jeopardize the most private personal information of millions of Americans. It appears to be, as former US Attorney Joyce Vance described the situation, “a coup—a takeover of government by a self-appointed group that wasn’t duly elected by the American people.” Though Trump has blessed Musk’s efforts, he has no authority to do so.
All this was impossible to predict last summer when the justices were crafting the immunity ruling. And yet, Justice Ketanji Brown Jackson, first in her questioning during oral arguments in the immunity case, and second in her prescient dissent, warned of just the kind of chaos and democratic backsliding that has unfolded over the past three weeks.
I can’t stop thinking about what she said.
“I’m trying to understand what the disincentive is from turning the Oval Office into the seat of criminal activity in this country.”
During oral arguments, Jackson pressed Trump’s lawyer, John Sauer, on what might happen if the president were not subject to the nation’s criminal laws. “I’m trying to understand what the disincentive is from turning the Oval Office into the seat of criminal activity in this country,” Jackson said. Sauer, whom Trump has nominated to be his solicitor general, disagreed. In his view, presidents have never been subject to criminal laws, and thus immunity has been the status quo for more than 200 years—despite mountains of evidence to the contrary.
A mere nine months later, Trump appears to be fulfilling this prophecy. It’s not clear given the fast-paced movement of events, and the lack of clarity about what is even happening across the government, whether Trump has personally violated any criminal laws. He clearly has ignored laws regarding those he can fire. And he has blessed Musk’s and his associates’ apparent lawbreaking. As the Washington Post reported, Trump “views Musk as doing the task he assigned him,” which one adviser described succinctly as “the dirty work.” The Executive Office of the President now appears to be engaged in an unprecedented takeover, the constitutional separation of powers falling by the wayside.
If a president were bound by criminal law, Trump and his legal counsel might consider the possibility of one day being prosecuted as part of a criminal conspiracy, for instance, for defrauding “the United States of its right to have its agencies transact their business free from corruption, undue influence or obstruction.” (This happens to be the same statute he was previously charged with violating in connection with his attempt to overturn the 2020 election.) The Supreme Court effectively neutered any necessity for acting upon those concerns now.
I asked Sam Bagenstos, a former general counsel at the Office of Management and Budget and Department of Health and Human Services under President Joe Biden, if the immunity decision had allowed the current Musk-led takeover. Bagenstos said he hasn’t seen any indication of Trump breaking criminal laws, or that the immunity decision removed a “lever of accountability” previously in place to stop the actions undertaken by Musk. Instead, he sees the immunity ruling as one of many giving “Trump even more reason to think that rules don’t apply to him, and he is imposing that same vision on the entire administration.”
That is, broadly, Jackson’s warning. Not simply a president himself emboldened to take bribes and murder opponents, but a fish rotting from the head down. Her dissent predicted a trickle-down lawlessness. “The practical consequences are a five-alarm fire that threatens to consume democratic self-governance and the normal operations of our Government,” she warned. That is an accurate description of what is happening right now.
Jackson continued to warn against “efficiency” as an inducement to tyranny. “Our Constitution’s ‘separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power,’” Jackson cautioned. This turns out to be an apt prebuttal to Musk’s gospel of efficiency, embedded in the name of his Trojan Horse operation, the so-called Department of Government Efficiency. The purpose of the separation of powers, Jackson wrote, quoting a 1926 dissent by Justice Louis Brandeis, “was not to avoid friction, but . . . to save the people from autocracy.” Trump and Musk, by contrast, act as if the separation of powers and the Constitution itself are inconvenient roadblocks that must be circumvented in the name of what they describe as efficiency, which is, of course, not the real goal. Dramatically slashing government does not ultimately lead to a smooth-functioning bureaucracy, just as gutting Twitter did not make the platform work better. More likely, it leads to less regulation for people like Musk who are dogged with enforcement actions, and more lucrative contracts for billionaires like Musk. It also frees up funds for tax cuts for the super-rich, like, say, for Musk.
“If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny.”
Borrowing from Justice Felix Frankfurter, Jackson predicted how presidential immunity would cascade downward, replacing a system of laws over men with rule by lawless men: “If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny.” We seem to be in the chaos phase now—no one knows exactly what is happening, agencies are in turmoil, civil servants don’t know if they will lose their jobs, and every hour new revelations come to light. She continued, “If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” To the extent that this lawbreaking extends into violation of criminal laws, Trump’s pardon power can ensure that following the law is not only unnecessary but impractical for his supporters.
“I worry,” she wrote, “that after today’s ruling, our Nation will reap what this Court has sown.”
Perhaps Trump’s autocratic ambitions were never going to be constrained by the threat of criminal punishment. Perhaps the court didn’t enable the hostile takeover we are now witnessing, but blessed it by removing accountability for presidential crimes. Either way, Jackson managed to pretty accurately anticipate what would happen when the most powerful person in the country was unshackled from the law. Under Roberts’ majority opinion, the only check on a lawless president is the Supreme Court, which reserved for itself the right to decide, on a case-by-case basis, whether a prosecution can go forward. Jackson feared this check would be woefully insufficient and placed her hope not in her colleagues but in everyone else.
“As we enter this uncharted territory, the People, in their wisdom, will need to remain ever attentive, consistently fulfilling their established role in our constitutional democracy, and thus collectively serving as the ultimate safeguard against any chaos spawned by this Court’s decision,” she wrote. “For, like our democracy, our Constitution is ‘the creature of their will, and lives only by their will.’”
Watching congressional Republicans submit to Trump’s and Musk’s power grab while the Democrats flounder, it struck me that Jackson had not only diagnosed the problem but also pointed to a solution. She was right that a lawless presidency could sink a democracy. I hope she’s also right that ordinary Americans can right the ship.
