A recent ruling by the US Supreme Court went far beyond constitutional provision and precedent to grant the president absolute or presumptive immunity on all his ‘official acts’, shielding him in perpetuity from criminal prosecution. This essay posits the ruling as an ideologically-based attempt to bolster the presidency, enabling it to assert its will in a multicultural, conflict-prone and post-constitutional America. This will backfire, though it creates a troubling precedent for countries like Nigeria, modeled on the American archetype.
By Chudi Okoye
After more than two hundred and thirty-five years in which he’s had pride of place in the canon of American political thought, it seems poor old John Locke is about to be toppled by Thomas Hobbes.
The Founding Fathers and framers of America’s famous constitution, rejecting the Old World’s tradition of monarchical absolutism, had crafted for their new country a constitution that combined diverse philosophical principles from different historical periods – from classical antiquity to their own Enlightenment era.
The framers picked up from Aristotle the idea of rule of law, and from Cicero his ideas on republicanism. They were impacted as well, in various ways, by the views of Enlightenment thinkers such as Immanuel Kant, David Hume, Voltaire and Thomas Paine. However, the framers were most notably influenced by the ‘social contract’ theorists and the like whose intellectual imprints can be found deeply embedded in the American constitution. They adopted Montesquieu’s concept of separation of powers, leading to the three separate but co-equal branches of government, as well as Jean-Jacques Rousseau’s notions of ‘general will’ and ‘popular sovereignty’. Above all, however, after considering Thomas Hobbes’s version of the ‘social contract’ theory based on the idea of a strong central authority (the so-called “Leviathan”), the framers opted for John Locke’s version anchored on the concept of natural rights and limited government.
For over two centuries, the constitutional innovation developed by the framers held firmly, and would become a beacon of self-government for many new nations. But this may be about to change, with the recent Supreme Court ruling, delivered July 1st in Trump v. United States, a landmark case concerning the limits of presidential immunity. The ruling puts the American constitutional tradition under severe test, and may likely unleash, some legal experts say, a Hobbesian Leviathan in lieu of Locke’s restrained executive. If this is unchecked, the portents are ominous for America, but also for countries like Nigeria that modeled their systems of government on the American template.
Trump and Immunity
About a month after Donald J. Trump took office in January 2017 as the 45th US president, the newspaper, Washington Post, adopted and began running under its masthead the slogan, “Democracy Dies in Darkness.” A little less than two years later, almost midway through Trump’s tenure, media consultant and former Republican strategist, Rick Wilson, published a book ominously titled: Everything Trump Touches Dies. Trump’s insurgent presidency was characterized by chaos, everyone could see. But these warnings from Wilson and the Post have proved particularly prescient, given what Trump has unleashed upon America, even in his post-presidency and as he bids to retake power in the November 2024 presidential election.
In his quest for absolution and power, Trump has managed to get the conservative majority in the US apex court to declare, surprisingly and contrary to legal consensus, that a US president has immunity from criminal prosecution which presumptively extends to all of the president’s official acts – with absolute immunity for official acts within an exclusive presidential authority that Congress cannot regulate, such as overseeing foreign relations, commanding the military, issuing pardons, vetoing legislation, managing immigration, and appointing judges.
The case that caused the US Supreme Court – dominated by six conservative justices, three of whom were appointed by Trump – to pronounce such sweeping presidential immunity concerns the former president’s participation in attempts to overturn the 2020 US presidential election, particularly his role in instigating or encouraging the January 6, 2021 (dubbed “J6”) mob attack on the Capitol Building (seat of Congress, the legislative branch of the US federal government).
The path to the immunity ruling had begun in February 2021 with civil lawsuits filed against Trump at a district court seeking damages for his incitement of the J6 attack. Trump asserted presidential immunity for that case. This was however rejected by the trial judge, Amit Mehta, an Indian-American, with the judge’s opinion upheld on circuit appeal. Later, a special counsel, Jack Smith, who had been appointed by the US Attorney General, began investigating Trump’s actions pertaining to the 2020 election and the J6 attack. A grand jury put together for the case indicted Trump, centered on charges that the mob he incited tried to violently overthrow the government and stop the peaceful transition of power, and had assaulted law enforcement officers. Trump would file a motion seeking to vacate the charges, again citing presidential immunity. But the judge assigned to the case, Tanya Chutkan, an African-American, rejected his petition. Again, the rejection of Trump’s immunity claim was upheld on circuit appeal.
In its unanimous decision rejecting the immunity claim, the panel of the Circuit Court of Appeal argued that former presidents do not have immunity against crimes committed while in office, especially crimes related to recognizing and implementing election results. The panel noted that presidents have immunity for some “discretionary acts,” but it flatly rejected the claim of “absolute presidential immunity… for every official act.” Seemingly horrified by such a claim, the appeal court panel said the very idea “would collapse our system of separated powers by placing the President beyond the reach of all three Branches.” It said, in conclusion, that “We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter.”
This was the judgment bizarrely vacated by the apex court on Trump’s appeal, with a 6-3 decision – split on ideological lines – which was carried by the conservative majority (all White justices, except for Clarence Thomas, who’s Black but proto-White). Writing for the majority the Chief Justice, John Roberts, argued for an “energetic and independent executive” which needs immunity to be able to take “bold and unhesitating action.” As such, he ruled that Trump had absolute immunity for acts he performed as president within the purview of his core or exclusive constitutional power; that he had presumptive immunity for official acts within the “outer perimeter” of his official responsibility, where he shared authority with Congress; and that he had no immunity for unofficial, private acts. The Chief Justice then remanded the case to the district court for an analysis of which specific acts by Trump are prosecutable based on the above taxonomy.
It was a most controversial ruling, especially because during oral hearings some very weird hypotheticals came up relating to the extent of presidential immunity. Trump’s lawyer argued, for instance, that owing to immunity, a president could not be prosecuted for selling US nuclear secrets to a foreign adversary, or for accepting bribes to perform his duty, ordering the military to stage a coup so he could retain power, or even ordering the assassination of a political opponent. He said the president must first be successfully impeached and removed by Congress (nigh impossible in a polarized environment) for criminal charges to be brought.
Although it rejected the Trump lawyer’s view that impeachment and removal by Congress are prerequisites for the criminal prosecution of a president, the conservative majority seemed unperturbed by the extreme hypotheticals that were presented. It offered a ruling based on a maximalist theory of presidential immunity.
It is indeed a bizarre decision.
None of the three liberal justices on the Supreme Court bench agreed with the majority opinion. One of them, Sonia Sotomayor, alarmed that the extreme hypotheticals posited by Trump’s lawyer did not constrain the majority, argued that its ruling on presidential immunity was more expansive than the founders would have recognized. She also wrote that the expansive immunity granted by the majority would reshape the institution of the presidency, and could permit criminal conduct by presidents because it would be virtually impossible for prosecutors to bring stickable charges. She strongly dissented from the majority decision.
Also dissenting, Ketanji Brown Jackson wrote that the majority ruling meant that “for the first time in history” the president, who already is “the most powerful official in the United States, can (under circumstances yet to be fully determined) become a law unto himself.”
That indeed is the crux of the matter. But the question is: why would the conservative justices – some of them allegedly originalists who stick to the original meaning and historical context of constitutional text – be so eager to grant expansive immunity to Trump (and, admittedly, all presidents) even though they concede in their own ruling that there’s “fragmentary evidence” for presidential immunity in the US constitution? A basic search of the constitution shows there’s an express immunity provision (at Article I, Section 6, Clause 1) for members of Congress, with regard to their speeches, debates, and other legislative activities. But, as many legal experts have pointed out, the constitution is virtually silent on presidential immunity. So, if there’s no strong textual basis for presidential immunity in the constitution, why would supposed textualists in the Supreme Court – who presumably only accept the ordinary meaning of constitutional text without attempting to intuit original intent – theorize it in their recent ruling? You have to wonder!
Deciphering the Decision
Some commentators, reacting to the ruling, have said it eviscerates a major plank of American democracy which, as one put it, is a “suspicion of concentrated power.” Others accused the majority of rendering a transparently political judgment, aiming to shield Trump, an ideological ally, in the lead-up to the November 2024 presidential election. Even before the ruling, many historians, journalists, commentators, political scientists, and constitutional scholars, often writing in liberal media, criticized the court for even entertaining the case and legitimizing Trump’s outlandish theory of immunity. Meanwhile, over in conservative media land, there’s mostly support for the ruling, even though most conservatives ordinarily profess a preference for individual liberty and constrained authority.
Mulling over the whole matter – the majority’s specious reasoning, the strident bench dissent, the wrangles over the ruling within the legal profession, as well as the rancorous public reaction, all of which cleaved along ideological lines – it is obvious that ideological tribalism has reached a new level in modern America. I will go even further to say that it has reached the vicious level often theorized in Western anthropology about the primordial forms of tribalism in Africa and other non-Western societies. It might seem a stretch to say this. But when one really looks at it, the conclusion seems inescapable that ideological tribalism in what some are calling “post-constitutional” America is no different from primordial tribalism in Africa. Both are merely varieties of identitarian politics emanating in a milieu of heightened social conflict. In America, the conflict plays across vast domains of civic society, but most dramatically in the law courts. It’s especially so with Supreme Court cases: apex rules engender epic rows!
To understand what may be behind the aggressive ruling on presidential immunity by the Roberts court, we have only to pick up the pulse of political extremism on the ideological right. Whether in mainstream conservative media or at more obscure but nonetheless influential think-tank or special interest forums, conservative wingnuts peddle an apocalyptic view of American politics and society which depicts liberals and the progressive left as ‘traitors’ out, for reasons never fully explained, to destroy the ‘American way of life’. Consider for instance the writings of one Michael Anton, a paleo-conservative ideologue of the Trump era who’s highly influential in right-wing circles. In the lead-up to the 2016 presidential election in which Trump faced Hillary Clinton, this chap wrote a breathless article titled “The Flight 93 Election,” a reference to United Airlines Flight 93, hijacked by al-Qaeda terrorists on September 11, 2001 and headed for the US capital, until passengers fought back and deflected it. By this analogy, Anton meant that conservatives must fight back and take control of America, before it’s crashed by liberals and progressives.
Trump won in 2016 but lost in 2020. Anton and his ilk have since been plotting his comeback, again peddling extremist writing, including his 2020 book, tellingly titled The Stakes: America at the Point of No Return.
I should mention that Anton is an avowed student of Leo Strauss, a 20th century German-American scholar of Jewish descent who rejected modern liberalism for its supposed lack of moral and spiritual grounding, and equally for its alleged tendency to undermine the presumably sacred authority of religion, tradition, and natural law. Anton condemns the Black Lives Matter movement; derides American diversity; decries the “ceaseless importation of Third World foreigners” into America, and insists there should be “no more importing poverty, crime, and alien cultures” – all red meat for the right trumpeted by Trump himself on the hustings.
Shall I also mention the unhinged ideologues at the Heritage Foundation, an influential think tank affiliated with the Republican Party? The group is gearing up for a fight in the 2024 election, having produced a policy document for an incoming Republican administration, named Project 2025: Mandate for Leadership. In the document, the group lays out a draconian blueprint designed to reshape the US government, based on a unitary theory of government which asserts that the president must have absolute power over the executive branch. The document lays out detailed plans to roll back civil rights, voting rights, women’s rights, what have you, and for the administration to take a hard line on immigration, foreign policy, etc. The group wants to reclassify federal civil service workers so they become political appointees completely loyal to Trump.
The Heritage Foundation’s president, Kevin Roberts, has made it clear the group is spoiling for a fight, saying recently: “We are in the process of the second American Revolution, which will remain bloodless—if the left allows it to be.”
You can hear in all of the above – in the American right’s political and policy agenda – Chief Justice Roberts’ argument for an unbounded president able to take “bold and unhesitating action.”
It is a yearning for ‘Caesarism’ or ‘Bonapartism’, a leap from Locke to Hobbes. It is an argument for a singular, concentrated authority able to impose order on a cacophonous, conflict-bound, post-constitutional society. The American right, probably upset by the ideological war which it imagines it is losing to the liberals and progressives, wants an imperial presidency, a Deus ex Machina, to slow down progress and return America to a primordial social order, or as Trump’s campaign slogan says: to “Make America Great Again.”
This, I think, is the essence of the Supreme Court’s ruling on presidential immunity. What could go wrong!
I worry that African leaders, including those in Nigeria, would become further emboldened in transgressing constitutional law, if even America tilts towards an imperial presidency.
