cnn
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The turbulent debate over strength of democratic constraints The goal of keeping Donald Trump in check when he returns to the White House in January has put renewed focus on a divisive Supreme Court ruling that some fear could enable his worst impulses.

Trump’s large electoral victory has revived fears on the left of an empowered country. President expanding the limits of his authority – only now with a precedent in hand that grants wide-ranging immunity from criminal prosecution.

Taken together, the political and legal alignment will lead Trump to a second term with unprecedented power after a campaign in which he promised fires special prosecutor Jack Smith “two seconds” from his inauguration and has flirted with the idea that President Joe Biden himself “could be a convicted felon.”

“For 250 years, the possibility of criminal prosecution acted as a barrier against the conduct of our presidents,” said Neil Eggleston, a veteran lawyer who served as a White House counsel during the Obama administration. “That guardrail no longer exists, and I see few if any others limiting President Trump.”

in a long awaited failure On July 1, over the objection of the liberal wing of the three justices, the Supreme Court held that Trump enjoyed “absolute” immunity from prosecution for actions taken within his basic constitutional powers and more limited immunity for other official actions. .

Chief Justice John Roberts wrote that Congress cannot criminalize a president’s conduct when he is “discharging the responsibilities of the executive branch.”

From their statements at oral argument, it was clear that several conservative justices saw the ruling not as a gift to Trump but rather as a way to avoid a spiral of potentially politically motivated prosecutions. And while the decision may do that (complicating any effort to prosecute Biden once he leaves office, for example), it is also widely seen as removing a check on a president who chafed at the concept of limits.

Justice Sonia Sotomayor warned in her dissent that the decision would make future presidents “a king above the law.” Pointing out an oft-cited hypothesis about the Navy SEALs ordering to kill political opponents, Sotomayor conveyed worst-case scenarios.

“Order Navy Seal Team 6 to assassinate a political rival? “Immune,” he wrote. “Do you organize a military coup to stay in power? Immune. Do you accept a bribe in exchange for a pardon? Immune. “Immune, immune, immune.”

But it’s unclear how far that immunity extends. The Supreme Court’s 6-3 decision left many questions unanswered and lower courts have yet to debate them. And they may not get the chance: Just hours after Trump won, Smith was discussing with Justice Department officials how to close the federal cases against him.

Trump or anyone else is unlikely to have a clear idea in January of what constitutes “official actions” that qualify for immunity, for example. It is doubtful that the White House or prosecutors know for sure when they will be able to overcome the “presumptive immunity” that the Supreme Court says applies to most of a president’s actions. It is also unclear how the court defines the “basic” constitutional functions of a president that, in the opinion, are entitled to “absolute immunity.”

Much of that analysis, the majority wrote, “is best left to the lower courts.”

What is made exceptionally clear in the July Supreme Court ruling is the notion that a president’s conversations with Justice Department officials are completely immune from prosecution. Smith’s first accusation The election subversion case alleged that Trump pressured Justice Department officials to “conduct bogus investigations into election crimes” and send letters to states falsely alleging problems on Election Day as part of a broader effort to encourage them. to present false voters for certification.

But the Supreme Court majority ruled that a president’s power to direct the Justice Department’s investigative and prosecutorial work falls within his exclusive constitutional authority. Trump, the majority ruled, “is therefore absolutely immune from prosecution for alleged conduct related to his conversations with Justice Department officials.”

When Smith introduced a new accusation this summerTrump’s alleged interactions with the Justice Department disappeared.

Looking ahead, such interactions will be of particular concern to ethicists. The same would presumably apply to Trump’s oversight of the intelligence services and the military, although the high court was not explicit on those points.

“At least in the short term, the problem is the Justice Department,” said Richard Painter, a former White House ethics lawyer under President George W. Bush. “The president has almost total control.”

This is particularly alarming, Painter said, given Trump’s rhetoric during the campaign. The former president has promised to “go after” Biden and “the entire Biden crime family.” He has also called for Vice President Kamala Harris to be impeached.