On Monday, six members of the Supreme Court granted Donald Trump — and every future president — broad criminal immunity. The court found that, as president, Trump was free to use his “official” powers to commit crimes. Considering the President of the United States is the most powerful position in the world, this is a breathtaking pronouncement. 

Writing in dissent, Justice Sotomayor details the implications:

When [the President of the United States] uses his official powers in any way, under the majority’s reasoning, 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. 

The Supreme Court invented this new kind of presidential immunity 235 years after the Constitution was ratified. And it lacks any grounding in the Constitution’s text. Instead, Chief Justice Roberts, writing for the majority, cites the need for the president to take “bold and unhesitating action” without “undue caution.”

Justice Sotomayor explains that the Constitution contains provisions granting various forms of criminal immunity to federal officials. But the President of the United States was not included:

The Framers clearly knew how to provide for immunity from prosecution. They did provide a narrow immunity for legislators in the Speech or Debate Clause. See Art. I, §6, cl. 1 (“Senators and Representatives . . . shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place”). They did not extend the same or similar immunity to Presidents. 

Indeed, the Constitution specifically contemplates the criminal prosecution of a former President. The Constitution states that even after a President is impeached, convicted, and removed from office, the former President “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Trump’s own lawyers, during his second impeachment trial, argued that Senators should not convict him because if there was evidence supporting wrongdoing, Trump could be criminally prosecuted for the events of January 6 after leaving office.  

In Federalist No. 69, Alexander Hamilton wrote that the President would be “liable to prosecution and punishment in the ordinary course of law.” This, Hamilton wrote is the key distinction between the “King of England,” who was “sacred and invulnerable,” and the “President of the United States.” 

Giving Trump everything he wants

The majority attempts to frame its decision as a compromise, because it states that former Presidents do not have immunity for unofficial acts. But that was the position of Trump’s own lawyers. So it is hardly a concession. 

It also creates a very narrow definition of “unofficial” acts. The President is acting in an official capacity as long as the President’s actions are “not manifestly or palpably beyond [his] authority.” Further, when making that evaluation as to whether an action is official or unofficial “courts may not inquire into the President’s motives.” That’s why, if the President accepts $10,000,000 to issue a pardon, the President cannot be prosecuted criminally for issuing the pardon because the President’s “motive” for the pardon, an official act, is off limits. 

The majority then states that when the President’s actions fall within the office’s “conclusive and preclusive” authority — powers that stem directly from the Constitution or legislation — the President has absolute immunity. The majority uses this standard to declare “Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials,” which is part of the federal indictment against Trump related to January 6. Notably, the majority does not state what, if any, of Trump’s actions that form the basis of the criminal charges are unofficial acts.

The heart of the majority decision is that, for all other official acts, the President has “at least presumptive immunity.” The majority finds the President is immune unless “the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.'” As Justice Sotomayor notes in the dissent, however, “it is hard to imagine a criminal prosecution for a President’s official acts that would pose no dangers of intrusion on Presidential authority in the majority’s eyes.” The majority decision, in fact, explains at length why criminally prosecuting Trump for pressuring former Vice President Pence to overturn the legitimate results of the election and install Trump for a second term may be an “intrusion on Presidential authority”:

[T]he President may frequently rely on the Vice President in his capacity as President of the Senate to advance the President’s agenda in Congress. When the Senate is closely divided, for instance, the Vice President’s tiebreaking vote may be crucial for confirming the President’s nominees and passing laws that align with the President’s policies. Applying a criminal prohibition to the President’s conversations discussing such matters with the Vice President—even though they concern his role as President of the Senate—may well hinder the President’s ability to perform his constitutional functions.

As if that were not sufficient, the majority also reserves the right to scrap the idea of a “presumption” of immunity and just declare that the President is immune from criminal prosecution for all official acts at some future date.

Justice Sotomayor sums up the impact of the majority decision: “Today’s court…has replaced a presumption of equality before the law with a presumption that the President is above the law for all of his official acts.” 

What happens now to Trump’s case — and the nation

The majority’s decision does not end the criminal case against Trump related to his actions on and around January 6, 2021. But the case is on life support. The Supreme Court remanded the case back to the district court to apply the decision and determine whether any of the charges against Trump survive. 

If the district court finds that some of the criminal charges against Trump can proceed, Trump can appeal and eventually find his way back to the Supreme Court. At a minimum, this will delay any potential trial far beyond the 2024 election. 

If Trump wins the election, he can direct the Justice Department to drop the case. And even if Trump loses the election, is a majority of the Supreme Court prepared to say that Trump should be tried for any of his conduct related to January 6, 2021? At this point, it seems doubtful.

But the implications for Trump’s criminal prosecution pale in comparison to the longterm impact on the nation. “The Court has now declared for the first time in history that the most powerful official in the United States can… become a law unto himself,” Justice Ketanji Jackson wrote in a separate dissent. “Presidents alone are now free to commit crimes when they are on the job, while all other Americans must follow the law in all aspects of their lives, whether personal or professional.” 

On today’s Front Page from The Free Press: Yale professor Jed Rubenfeld on a busy Supreme Court session; Emily Yoffe on what’s really wrong with the president; Kat Rosenfield on the functional illiteracy of J.K. Rowling’s critics; Kamala Harris and Jill Biden have a cringe-off; and much more. 

But first: our new columnist, historian Niall Ferguson, set off a big debate with his debut piece, arguing that 2024 America has a lot in common with the Soviet Union. Today he weighs in on the aftermath of the debate:

The Republicans remain the captives of the personality cult—the “MAGA movement”—that has formed around Trump, just as the Democrats were the captives of the personality cult and populist movement that formed around William Jennings Bryan between 1896 and 1908. They therefore run a considerable risk of losing this election, which they ought to be comfortably winning on the big issues of inflation and immigration, because their candidate is too off-putting to too many of the crucial voters.

The Democrats remain the captives of the Donorcrats—the wealthy friends of the Clintons and the Obamas, many of whom are almost as old as Joe Biden, all of whom despise him, and none of whom could come up with a better candidate in 2020.

As the unknown known became a known known on Thursday night, the iPhones of the well-manicured elite were burning up, whether they were being held in Aspen, the Hamptons, Nantucket, Beverly Hills, or Martha’s Vineyard. In many cases, they were the same phones that were on fire as the reign of Claudine Gay at Harvard came to its ignominious end.

What will the Donorcrats do? Is there a way out of this double hostage crisis? Read on. . .  

Yesterday the Supreme Court published its decision in the Trump immunity case. The ruling was decided 6–3, with Chief Justice John Roberts writing the lead opinion and Sonia Sotomayor dissenting in an opinion joined by Elena Kagan and Ketanji Brown Jackson. Depending on who you believe, it was either a righteous victory for the former president—or the beginning of the end of democracy as we know it. 

This politically high-stakes ruling was just one of a series of important judgments decided by the court at the end of a busy term. And reader, a confession: we’ve been too preoccupied by the debate fallout to properly chew through it all. And so, in search of some much-needed clarity, we dropped Jed Rubenfeld a line. Jed is a professor of constitutional law at Yale Law School and, whether in the classroom or on his YouTube show Straight Down the Middle, he demonstrates his knack for stripping away the hyperbole that accompanies so much legal commentary these days. In other words, he explains complicated legal cases in a way that even I can understand. 

So here’s Jed, explaining the Trump immunity case and two other important rulings, Chevron and Murthy v. Missouri.

Biden has no intention of stepping down, report Mike Allen and Jim VandeHei. And the president, keen to prove he has what it takes, is considering upending his strategy of avoiding tough interviews and no-holds-barred press conferences. (Axios) 

Twelve experts offer advice for Biden on how to turn things around. The best suggestion comes from Jeff Greenfield: “Build a time machine.” (Politico)

Chris Stirewalt games out what would actually happen if Joe Biden dropped out. “All his delegates would suddenly become ‘unpledged’ and free to support whomever they wish. Poof.” (The Dispatch)

Steve Bannon showed up at a federal prison Monday to begin his four-month sentence for defying a congressional subpoena. Crowds chanted “lock him up” as Trump’s former adviser arrived at the Connecticut facility. (AP)

Don’t miss the other side of the story of the rise of the far-right in France: the abject failure of Macron’s technocratic centrism. “Far from sending populism packing, Macron has overseen its rapid expansion.” (Spiked)

The Supreme Court ruled Friday in Grants Pass v. Johnson that municipalities have the right to dismantle homeless encampments. The ACLU criticized the decision, arguing “we cannot arrest our way out of homelessness.” Charles Fain Lehman endorses the ruling. (The Causal Fallacy)  

There are laws that should be used to protect synagogues from the kind of violent antisemitism witnessed in Los Angeles last month. Why aren’t they, asks law professor Nathan Lewin. (Tablet) 

The Australian national broadcaster reports that Russia is trying to interfere in the UK’s election. The UK’s national broadcaster reports. . . nothing of the sort. And quite right too, argues one commentator: the threat is minor, and unserious. To give it major attention would be hysterical. (American media, take note.) (The Spectator)

At long last, Pamela Anderson has joined Substack. It’s called The Open Journal, and, defying expectations, it’s not a forum for energy policy but “a space for lovers, renegades, and free thinkers to flourish and grow together.” (The Open Journal)

A field of hydrothermal vents has been found more than 3,000 meters underwater off the coast of Norway in the Arctic Circle. This underwater mountain range was previously thought to be fairly unremarkable, but volcanic activity under the seabed creates havens of warmth where life can gather. The field has been named Jøtul, for the giants of Norse mythology that live beneath mountains. (ScienceAlert)

→ What’s wrong with the president? It is time for Joe Biden, the president of the United States, to submit to a medical assessment performed by a group of independent doctors, doctors who are given carte blanche to release their findings. After Biden’s alarming performance at last week’s presidential debate, his stumbling over words, his inability to form a coherent argument, his slack jaw and blank stare, it became undeniable that something drastic had happened to the 81-year-old leader of the free world. It is time for the public to know what is wrong—and what isn’t wrong—with him.

Instead of taking medically necessary action, Biden’s White House and campaign staff are floating their own diagnoses. The president suffered from a new malady now known as One Bad Night syndrome, or he had a late-breaking cold, or—as per the vice president—he experienced “a slow start,” or, as per the House minority leader, “a setback.” Democratic National Committee chair Jaime Harrison acknowledged Biden has a condition that afflicts us all: an inability to get younger. 

But you don’t have to be a doctor, or even a Google doctor like most of us, to conclude that these explanations sound like cover-ups. The people around Biden have also decided to turn the tables on the growing number of commentators and others who have concluded, based on recent observation, that Biden is unfit to have a second term. They have diagnosed those calling for Biden to withdraw from the 2024 presidential race as being “bed-wetters.” It does seem to be a bad idea to inject the notion of incontinence into this discussion.

There is a long history in the U.S. of suppressing knowledge of presidential maladies, from First Lady Edith Wilson secretly being de facto president after her husband Woodrow suffered a disabling stroke, to hiding that Franklin Roosevelt used a wheelchair as a result of polio. As Bari Weiss described in The Free Press on Friday, the Biden White House’s own cover-up has entailed going on the offensive against journalists and others who have dared bring to light the increasing evidence of the octogenarian leader’s decline.

In the absence of actual medical scrutiny, serious diagnoses are being floated: Alzheimer’s, Lewy body dementia, stroke, and Parkinson’s. The Parkinson’s diagnosis seems to be leading the pack. 

It should be noted that in February the physician to the president, Kevin C. O’Connor, released the results of Biden’s annual physical and stated there were “no findings which would be consistent” with Parkinson’s. O’Connor’s overall conclusion was that Biden “remains fit to successfully execute the duties of the Presidency.” It is not reassuring that this conclusion rings so false to so many in such a short time.

The day after his debate fiasco Biden was back on the campaign trail, and back to reading from a teleprompter. He said that unlike his opponent Donald Trump, “I know how to tell the truth.” So please, Joe, gather the doctors, and let them tell us the truth about how you really are.
—Emily Yoffe

→ Fighting fire with cringe: Other than some heated emergency post-debate interviews, Kamala Harris has kept pretty quiet since Thursday night’s disaster. But she popped up again on Sunday night for a prerecorded appearance during the BET Awards. The bit, presumably an attempt to address Biden’s cratering numbers with black voters, is, to put it mildly, the worst thing I’ve ever seen. In the clip, Harris FaceTimes BET Awards host Taraji P. Henson, who tells the vice president she is worried about the election and that our basic freedoms are being tested. “Yeah girl, I’m out here in these streets,” replies Harris, sitting behind a large desk with the Seal of the Vice President affixed to the front, doing her best “How do you do, fellow kids.” She continues: “Let me tell you: you’re right, Taraji. There is so much at stake in this moment. The majority of us believe in freedom and equality, but these extremists, as they say, they not like us.” That last line is a nod to the Drake-Kendrick rap beef, a reference an aide presumably had to explain to the vice president. No cap, Kamala?! The whole thing makes Hillary’s “Pokemon-go to the polls” look like Chappelle’s Show. 

In an apparent attempt to outdo the vice president in the Painful Attempt at Relatability Olympics, Jill Biden appeared on the cover of the latest issue of Vogue Monday. Accompanying the cover image is an ambiguous quote: “We will decide our future.” The puff piece features the first lady draped in Ralph Lauren and Michael Kors jumping from one important topic (the future of democracy) to another (cashmere dresses). A note at the top of the piece includes a quote from Jill, reached at Camp David on Sunday: “We will not let those 90 minutes define the four years he’s been president,” she says. “We will continue to fight.” For the love of country, surrender! 

But the biggest gauntlet was thrown down not by the president’s wife or veep but his favorite morning show host. Mika Brzezinski began Monday’s edition of Morning Joe with a fifteen-minute monologue about the brilliance of Joe Biden. It’s hard to fully explain the level of fawning. It would make a North Korean state broadcaster blush. It recalls some of the conservative broadcasting during the Trump years that was designed with an audience of one in mind. —OW 

→ The Lolita test: Gird your loins, ladies and gents: we are doing Lolita discourse again. Vladimir Nabokov’s most famous novel, featuring the memoirs of an unrepentant pedophile named Humbert Humbert, has often been a flashpoint for controversy—including at the time of its 1955 publication, when the only outfit that would touch it was a French press best known for publishing literal porn. But however foolish or prudish the mid-century imbroglio surrounding Lolita might have been, it pales in comparison to the one now raging on the internet, where a sizable crowd has been moralistically shrieking about the book for three straight days.

Like so many other digital-age absurdities, this one originates with a millennial who is mad at J.K. Rowling. Here’s what happened: in the year 2000, in an interview with BBC Radio 4, Rowling praised the novel, saying, “[A] plot that could have been the most worthless pornography becomes, in Nabokov’s hands, a great and tragic love story.” Rowling’s sentiments about Lolita are not unique; Stanley Kubrick and Dorothy Parker famously felt the same, and my own copy even has a blurb on it from Vanity Fair, calling it “the only convincing love story of our century.” But nearly 25 years later, an actress named Sooz Kempner unearthed the interview and was shocked, shocked! 

“JK Rowling doesn’t understand Lolita,” she wrote on X. “It is not a great and tragic love story, it is terrifying book [sic] written from the POV of a peadophile [sic], a very obviously unreliable narrator, and at no point are you meant to say ‘this is so romantic.’ She’s 12, Joanne. What the FUCK, Joanne.” Her sentiments were echoed by countless others, including novelist Ryan Ruby, who sniped, “Lolita is a moral test. Kempner passes it. Rowling does not.”

On the one hand, this is very much a tempest in a terminally online teapot. On the other hand, the wild virality of Kempner’s post (which has 5.2 million views and over 9,000 reposts) does unfortunately tell us something about the cultural discourse in the year 2024: namely, that people, in their fervor for recreational hatred, are rendering themselves functionally illiterate. 

Aaron Gwyn, a professor in the English department at UNC Charlotte, was mystified by the surge of moralizing discourse surrounding Lolita: “It’s absurd. Nabokov would be horrified by the idea of his art as any kind of a moral test,” he said to me. “He didn’t need a 400-page novel to tell us that a pedophile is bad. But he saw very clearly America’s worship of youth, and America’s lust after the girl—the nymphet—as an archetype, and he turns that inside out. Humbert is a monster, but he’s also seductive, in the prose, the humor. . . if the reader wasn’t on some level charmed, in the witchcraft sense, it wouldn’t be effective.”

I don’t like to engage in youth-bashing (some of my best friends are youths, and rumor has it I used to be one myself), but this seems to be a particular problem for members of the under-40 set—people who, like Kempner, appear utterly confounded not just by the difference between depiction and endorsement but by the expression of any thought that contains two or more moving parts. At the risk of stating the obvious, Rowling’s praise for the transformative power of Nabokov’s writing does not amount to an assertion that she found the plot of Lolita literally romantic. It’s like when Oscar the Grouch sings his signature ballad about loving trash. Surely we may admire the artistry, the imagery, the cheeky rhyming schemes, without sharing his passion for the garbage itself? 

At least until Oscar the Grouch gets canceled, at which point all bets will be off. It’s trash, Oscar. What the FUCK, Oscar. —Kat Rosenfield 

When we asked Free Pressers for Fourth of July–themed recommendations, we were expecting peach pies and sparklers. While there were a few suggestions in the party-planning category, a lot of you suggested celebrating Independence Day by. . . reading the Declaration of Independence. This group sounds like a blast at dinner parties! Though it is a reasonable, and meaningful, idea. Here are a few extra tips from Free Pressers to make this year’s reading extra special. 

Do it out loud. Samuel will be reading the document with a group for the nineteenth consecutive year: In advance I assign readers for various sections, and we have one rule: “NO POLITICS.”

Levi has an additional suggestion: Follow the Declaration with Frederick Douglass’s powerful 1852 speech “What to the Slave Is the Fourth of July?”

Send your recommendations to thefrontpage@thefp.com. 

Oliver Wiseman is a writer and editor for The Free Press. Follow him on X @ollywiseman. 

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