The Supreme Court’s decision on presidential immunity virtually assures that Donald Trump will not be tried before the 2024 election, and thus sharply narrows the possibility that the public will receive any significant new information about Trump’s efforts to overturn the 2020 election. This is because the Supreme Court has now affirmed the extent of a President’s immunity for his official acts, and that this immunity in some respects frees him from responsibility for unlawful activity.

This may have been a wise decision for the ages, but in the age of Donald Trump it is troubling.

Because of Trump’s refusal to abide by any rules or restrictions, his claim that the charges against him were politically motivated, and his threat of “retribution” against his opponents, his re-election will bring the country into a new and dangerous era.

This significantly increases the stakes in the next election, and what happens if President Biden’s weak performance in last week’s debate seriously impairs his chances to hold onto the presidency. In turn, it substantially increases the pressure on the Democratic party to find a replacement for Biden.

Briefly, the Supreme Court held that the constitutional separation of powers provides the President with two levels of potential immunity against criminal liability. For his official, “core” duties, the President has full immunity for his acts, so that they can’t be challenged in Congress or the courts during or after his term of office.

Where the President’s actions are within what the Court called the “outer perimeter“ of his authority—presumably those things that are not his core responsibilities but associated with his role as chief executive—he  has “presumptive immunity,” which seems to mean immunity when he can show that his actions are consistent with this role. There is no immunity for acts that do not fall within these two categories.

Endless scholarly dissertations will be written to put meat on the bones of what the Court had in mind, but it is clear that Donald Trump will have far more latitude for action as President than most lawyers expected before the Supreme Court took on this case. In particular, Trump has said that he will make major changes in the Federal Government during his presidency, and use the Justice Department against those who have sought to use the judicial system against him.

What all this means is that the stakes of the coming presidential election have grown even larger. Biden’s poor showing in last week’s debate, and the fact that it was the result of his ever-advancing age, substantially increases the likelihood both that Trump will win the coming presidential election, and that the Democratic Party will fail to gain the countervailing majorities in either the House or Senate that could limit Trump’s options. In other words, the Court’s decision on immunity will increase the likelihood that Trump, if elected President, will be able to take steps against his opponents that go beyond the norms in US politics.

One example from the Court’s opinion suggests how difficult it will be to deal with a re-elected Donald Trump. One of the elements of Trump’s indictment for election interference was his effort to press Vice President Pence into violating the Vice President’s duty under the Constitution to oversee the counting of the states’ Electoral Votes. Trump had pressed Pence to set aside, and send back to the states, the votes from a number of states that Trump falsely claimed were fraudulent. Pence refused to take this step because it was not authorized under the Constitution.

The Court suggested that any challenges to Trump’s pressure on Pence might fall into the category which the Court called the “presumption of immunity,” which would come into play if the claim were to “pose any dangers of intrusion on the authority and functions of the Executive Branch.” This would mean that the initial holding of a trial court would have to be brought before the Supreme Court.

In other words, to prosecute something as blatant as pressing Pence to violate the Constitution’s clear directions about the counting of Electoral Votes would require a trial court’s finding that it would not intrude on the President’s authority. The latitude for aggressive action against perceived enemies would be substantially widened.

The lesson here is that voters in the future will have to consider the character—not just political positions—of the person they elect as President.

It is true, of course, as some Republicans have been arguing, that if Trump will really be as free of control as the Supreme Court’s decision suggests, impeachment is always a remedy. But this is whistling past the graveyard. Trump was impeached twice, but never convicted by the Senate. Now there are regrets, but it’s far too late.

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