In a landmark decision this week, the Supreme Court granted presidents sweeping immunity from prosecution. The ruling represented a huge victory for former President Donald Trump and future presidents who want to wield maximal power.
But its long-term implications for the Justice Department could prove just as consequential. The court has brushed away nearly 50 years of policies the Justice Department adopted to insulate its cases from political interference.
The majority opinion by Chief Justice John Roberts and adopted by the court’s five other conservatives declared that former President Donald Trump is “absolutely immune” from criminal prosecution for allegations he pushed Justice Department leaders to conduct sham investigations of voter fraud and threatened to replace his acting attorney general with a crony if he didn’t get with the program.
“The President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty ‘to take care that the laws be faithfully executed,’” Roberts wrote.
The threats to remove DOJ leaders who would not comply with Trump’s directives implicate "'conclusive and preclusive’ Presidential authority” and a president’s power to remove officials he has appointed are not subject to regulation by Congress or review by the courts, the chief justice added.
In the years after the Watergate scandal, successive Justice Department leaders representing both political parties drew up policies to try to ensure that tampering with their criminal cases would never happen again. Those policies tried to guarantee DOJ independence from the White House in federal law enforcement investigations and to restrict communications between White House officials and most people inside the DOJ.
The current Attorney General, Merrick Garland, drafted some of those same policies in his first big job after law school. They became a fundamental part of the Justice Department—and of his own career.
Garland signaled their importance at a news conference on Jan. 7, 2021, a day after the storming of the U.S. Capitol.
“Those policies became part of the DNA of every career lawyer and agent,” Garland said. “If confirmed, my mission as attorney general will be to reaffirm those policies as the principles upon which the department operates.”
Now, a Supreme Court majority has driven through those guardrails. And the result could be an enormous shift in how the Justice Department operates.
Philip Lacovara, a former Watergate prosecutor and DOJ lawyer, said the Supreme Court decision means “that the president can order his political enemies prosecuted and the Justice Department must obey those decisions and the courts are not entitled to examine that partisan motivation.”
This is not really a hypothetical. Former President Trump has pledged to engage in “retribution” if he’s elected later this year. Trump said he wants to use the Justice Department to go after people who worked at the FBI, and in the Biden White House. Trump also called out members of the House Jan. 6 committee who investigated him.
The conservative Supreme Court majority has given Trump a lot of leeway to press investigations of his opponents and drop cases against his allies, if he wins the election.
Dissenting justices led by Sonia Sotomayor called this a “law free zone” around the president.
But legal experts said the conservatives on the court appear to be a lot more worried about prosecutors using the justice system to go after future presidents than they are about presidents misusing their sweeping power.
Jack Goldsmith, a Harvard law professor, wrote on the website Lawfare that it’s too early to say how this will play out in the years ahead, in part because it’s not clear if Trump will win and carry out all these revenge fantasies, or if other presidents down the line have an inclination to misuse the Justice Department.
Another former Republican Justice official told NPR: “Just because you can do something constitutionally, doesn’t mean you should do it.”
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