Thinking the Unthinkable: SCOTUS Guts the Rule of Law

In 1962, Herman Kahn, a brilliant physicist and military strategist, published a startling book Thinking the Unthinkable about nuclear war and the necessity of the U.S. to convince the Soviet Union that the U.S. could sustain a nuclear first strike and deliver an equally devasting strike on the Soviet Union. The book alarmed America’s National Security team, including those at the operational level like myself as a U.S.A.F. officer assigned to the Strategic Air Commands B-52 34^th Bombardment Wing stationed at Wright Patterson AFB.

No, I’m not thinking in this essay about going to war or surviving a nuclear holocaust and the aftermath. How awful that would be. But I am thinking the unthinkable about an equally startling decision by the U.S. Supreme Court (SCOTUS) to grant the U.S. President criminal immunity. The decision to grant presidential immunity, trashing the rule of law in America, is beyond comprehension. The founders deep seated fear of an all-powerful executive has finally, nearly 250 years later, come to pass. Remember Benjamin Franklin’s famous words. When asked “do we have a monarchy or a Republic?” he said, “a Republic if you can keep it.” Prophetic wisdom, is it not?

Okay, let’s parse the SCOTUS ruling. The court ruled that Presidents have absolute immunity for official acts, but no immunity for unofficial acts. Sounds reasonable, doesn’t it. Wait a minute—how is an official act different from an unofficial act? And, who makes that determination? Not so simple, is it?

Consider an aggrieved woman who blackmails a President for a million dollars claiming that she has been sexually assaulted. She promises to not reveal the story if he ponies up. The President agrees to the payment and writes her a check on his personal bank account while doing so in the Oval office. Is his act official, given that he is a President writing a check in the White House and thereby immune? Who should determine whether the President’s act is official or unofficial? A special prosecutor, the Justice Department, the Congress–the all-knowing, powerful courts?

Consider another hypothetical possibility—the President orders the Navy’s Seal Team 6, the U.S. military special mission unit that carried out the assassination of Osama bin Laden in a 2011 raid, to assassinate a political rival. Would this be an official act and immune from criminal prosecution? Possibly, says Justice Ketanji Brown Jackson. She writes in her dissenting opinion that “In the end, then, under the majority’s new paradigm, whether the President will be exempt from legal liability for murder, assault, theft, fraud, or any other reprehensible and outlawed criminal act will turn on whether he committed that act in his official capacity, such that the answer to the immunity question will always and inevitably be: It depends”. A chilling possibility for sure.

Consider yet another “official” act. The President is offered and accepts a bribe by an individual who seeks a pardon. Would a President be subject to criminal prosecution. Possibly not. Unthinkable? It is so.

Justice Sonia Sotomayor along with Justice Jackson dissented from the 6-3 majority ruling asserting that the high court made a “mockery of the principle” that no one is above the law. Her scathing opinion claims, “the President is now a king above the law.” Further she wrote, “Today’s Court, however, has replaced a presumption of equality before the law with a presumption that the President is above the law for all of his official acts.” Could corrupt Presidents be immune from criminal prosecution? Unthinkable? Not anymore.

“With fear for our democracy, I dissent,” Justice Sotomayer pleads. All law-abiding citizens should fear for American democracy. The SCOTUS extremist, conservative majority has dared successfully to gut the rule of law in America. This unthinkable act by the highest court in the land is beyond one’s imagination. The Constitutional founders are surely turning over in their graves. Their genius that no man or woman in America is beyond the law must be reversed by a future SCOTUS that appreciates and understands the meaning of law in democratic civil society. The unthinkable is now thinkable!  Is it not so?

(For details regarding the SCOTUS ruling, see https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf)

Donald C. Menzel, Ph.D. is a past president of the American Society for Public Administration, author and international speaker on ethics reform. Don organized OLLI-USF’s China Special Interest Group. He also served as an OLLI-USF faculty member for over 10 years. Together with his wife, Kay, Don divides his time between Florida and Colorado, and contributes commentary on current issues in both locations.