Should a president always be held accountable for crimes committed in office if he claims they were necessary to doing his job? In Trump v. United States, the Supreme Court essentially ruled no. Under the 2024 ruling, a president would have absolute immunity from constitutional acts and presumptive immunity from official acts, regardless of lawfulness. To better understand what this means and how this could influence the actions of presidents from this point forward, we should start at the beginning.

Background and Decision of Trump v. United States

In 2023, former Special Counsel for the Department of Justice Jack Smith indicted Donald Trump on the grounds that he attempted to overturn the 2020 election. Smith alleged that the president used the Department of Justice to “conduct sham election criminal investigations” and “levy false claims of election fraud and convince Members of Congress to further delay the certification,” among several charges related to conspiracy and obstruction of the electoral certification process.

Essentially, Trump engaged in criminal activity by conspiring with attorneys to launch investigations at the state level under knowingly false pretenses in order to disqualify votes and publicly declaring the 2020 election results were illegitimate despite receiving opposing evidence from trusted peers to these claims. Donald Trump claimed presidential immunity, and the Supreme Court largely accepted this argument in a 6-3 vote. The Court’s reasoning? Simply put, actions taken by a sitting president can no longer be grounds for prosecution even after his term if it falls within the largely interpretive scope of core constitutional powers under Article II of the Constitution, a category now considered to have absolute immunity. Furthermore, anyone attempting to prosecute the president now carries the added burden of proving that their claims aren’t intruding on executive authority for all other actions considered to be official duties, actions now protected by presumptive immunity.

Previously, there was no law formally declaring that presidents are to be prosecuted for illegal actions after leaving office, but it was widely assumed. Now, only unofficial acts carry no immunity, significantly heightening the bar for presidential accountability.

Theories of Democratic Backsliding Observed in the United States

Political scientist Nancy Bermeo introduced the idea that democracies don’t always fall through dramatic events but through dangerously covert and institutional processes. Namely, Bermeo emphasizes the role of executive aggrandizement: the gradual and oftentimes legal expansion of a leader’s scope of authority at the expense of a weaker separation of powers in government. A leader begins this process by weakening institutions that would otherwise hold them accountable through small but cumulative changes. Because an elected leader can engage in this activity with the help of other elected officials casting a unanimous vote in favor, the manipulation of law goes largely unnoticed due to its democratic appearance on all fronts. This legal avenue towards broader executive power paves the way for what can become an autocratic or authoritarian regime if leaders and state actors were to decide to conspire, as they would now have the necessary confidence and protections in place to do so.

Trump v. United States aggrandizes executive power significantly by violating a basic principle of democracy: that no one is above the law. The highest court in the United States ruled that illegal acts and prosecutable acts can be mutually exclusive if they concern the president. Donald Trump did not need to send tanks into the street or be at the forefront of a riot; this would have drawn considerable attention from the public. By receiving immunity from the judiciary instead, the balance of power is tipped in your favor in a quiet but powerful way that will go unnoticed by many. By warning followers that “if you don’t fight like hell, you’re not gonna have a country anymore” in reference to what then became the January 6 attack on the Capitol, and facing no repercussions, you can attempt an insurrection without having to break any obvious laws yourself.

While it can be said that past presidents have always enjoyed some level of criminal immunity, whether through pardons or a prosecutor’s discretion, it’s still crucial to consider how much more overt and normalized this privilege becomes when there’s a legal framework explicitly upholding it.

This phenomenon is complemented by political scientist Guillermo O’Donnell’s theory of horizontal accountability, the state’s capacity to hold officials accountable for legal transgressions, as a measure of democracy. When state institutions, such as courts, agencies, and branches of government, fail to prosecute or sanction officials involved in illegal activity, democracy weakens dramatically.

As a way to understand the court’s intentions, it’s worth considering what the benefits are to significantly heightening the criteria for a president to be prosecuted for suspected crimes and consequently reducing accountability. If the end result of a ruling appears to only benefit a very small minority while at best having virtually no benefit to citizens, it would be reasonable to conclude that the state is not using the law for good through potentially misunderstood means, but simply as a tool for private interests. Another detail worth considering when deciding if private interests are the underlying motivator is that 3 of the 6 Supreme Court justices who voted in Donald Trump’s favor and ultimately tipped the decision were appointed by him during his first term, namely Barrett, Kavanaugh, and Gorsuch.

When you consider that the state is the only body capable of acting as an intermediary between the people’s will and the leader’s actions in a democracy, it becomes clear that failure to commit to this unique responsibility has devastating consequences. 

Current Implications for American Democracy

While the permission of overt election fraud may not seem like a pressing demonstration of democratic backsliding, the threat doesn’t lie in what happened but in what’s now been made possible. If a leader feels that they’re legally untouchable, they will inevitably test the parameters of what they can do without resistance under their broad range of presidential powers.

We’ve seen that the president can pressure the Department of Justice to investigate political rivals under weak pretenses by arguing that they were acting within their authority. Similarly, a president could feasibly order government agencies to disadvantage certain states or suppress voters by imposing voting criteria that would target certain groups. These actions could easily be argued to be constitutional duties necessary for promoting fair elections. Taken a step further, the obstruction of another election could be considered a safeguard towards electoral integrity or any other supposed benefit to the country. Under the current framework, charges brought against a president for any of these actions would be filtered through the lens of presidential immunity instead of accountability.

A decision like this one doesn’t make noise until the effects are hard to ignore from an accumulation of similar practices. It’s for this reason that we should remember that democratic erosion is often an accumulation of small actions that shouldn’t be ignored simply due to their covert nature. When the branches in charge of checking presidential power actually begin to protect it, the rules begin to quietly change from the inside out until they create an unrecognizable framework that a democracy was never designed to withstand.