The Supreme Court rules that Donald Trump can be a dictator

If Donald Trump commits a crime in office, writes Justice Sonia Sotomayor in her dissent for Trump v. United States, "he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune."

In conclusion, Sotomayor writes in the final decision of the Supreme Court's term, "Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent."

Most of the media coverage of Monday's Supreme Court decision was focused on the impact it could have on the felony charges against the former president for planning and attempting a coup in 2020, which led to the insurrection of January 6, 2021. The news on that front is bad. As legal analysts quickly detailed, the six Republican justices shot down many of the charges special prosecutor Jack Smith included in his indictment, and even more broadly eliminated most of the evidence Smith could otherwise bring to court. Even if the case somehow survives, figuring out how to try it now will eat up so much time there's no chance of a trial before the election in November.

In itself, that would be bad enough. It is yet another reminder that this Supreme Court is a lawless entity whose only legal guideline is "What's good for the Republican Party and their political goals?" But, by helping Trump's presidential campaign, the six Federalist Society-linked justices went a step further, setting up Trump to return to the White House as a dictator instead of a president. For, as Sotomayor writes, "the President is now a king above the law."

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A Republican president anyway. For all the people who are semi-joking that President Joe Biden now has a legal right to have the military assassinate Trump, Chief Justice John Roberts gave himself an out. Roberts insists that the president "is not above the law." It can still be a crime if the court determines that the behavior falls outside of "his official acts." But what makes something an official act? Well, that's a little hazy, you see. As Los Angeles Times legal analyst Harry Litman noted on Twitter, the "test" appears to be whether a prosecution presents a serious "threat of intrusion on the authority and functions of the Executive Branch."

With the nakedly partisan tilt of this court, it's not hard to see what would distinguish a legitimate vs. illegitimate intrusion on a president's authority: his political party.

Biden orders a hit on a political enemy? That's outrageous and therefore cannot be "official." Trump orders a political assassination? Well, he must have had a good reason! As liberal Justice Ketanji Brown Jackson wrote in her dissent, "The official-versus-unofficial act distinction also seems both arbitrary and irrational."

If that sounds hyperbolic, the context shows it is not. Last week, the conservative justices ruled that their opinions of scientific fact should overrule those of legitimate scientific or medical experts hired to work in federal agencies. But what makes something a "fact" in the eyes of the Republican justices was not evidence, but whether or not it fits their pre-existing policy preferences. For instance, in a related case overturning an environment regulation, Justice Neil Gorsuch repeatedly referenced in his decision "nitrous oxide," which is laughing gas, instead of "nitrogen oxide," the toxic emission that causes smog. Now something as concrete as the chemical composition of air pollutants can be legally redefined according to the wishes of a right-wing Supreme Court justice.

There is little hope for a fair or objective measure of what counts as an "official" or "unofficial" executive action. Republicans already speak and act generally as if a president can only be legitimate if he's a member of their party. As Jamelle Bouie wrote in the New York Times on the eve of January 6, Republicans have embraced the view "that a Democrat has no right to hold power." Whatever pretzel logic the Republican justices employ, the guiding principle of whether a criminal act is "immune" will likely depend on whether the president is a Republican or a Democrat.

It's clear reading this tortured decision by Roberts that he wanted to shield Trump from criminal liability while maintaining the pretense that this is anything but a Republican power grab. The problem is that Trump's crimes are so sprawling and the evidence of his guilt is so overwhelming that a more limited definition of "immunity" that would protect Trump from prosecution wasn't possible. The only way to make the shield big enough to cover every bit of Trump's criminal exposure was to declare "immunity" for every evil thing a president might want to do.

But, as this decision shows, there was also no way to spare Trump from all the consequences of his past crimes without creating an all-encompassing invitation for all future crimes Trump would wish to commit, at least if he's in the White House. That Trump will go hog wild with such permission is beyond dispute. Trump commits crimes with the frequency most of us bring to tasks like eating meals or using the restroom. Trump has already indicated he plans to be a dictator on "day one." His policy arm, Project 2025, has laid out a blueprint for such a dictatorship, including plans to order the military to shut down peaceful protests, the creation of concentration camps for migrants, and the mass firing of any bureaucrats who refuse Trump's illegal orders. Many of these plans involve committing acts that, prior to this decision, could be prosecuted as crimes. No longer.

Indeed, if Trump makes good on his hints he'll stay past his second term, this could make that president-for-life dream a reality. Another coup would require committing more crimes, but now the Supreme Court said that it's fine for Trump to do that, as long as he does it "officially."