Tuesday’s debate made clear that the stakes of the November election could not be higher—a second term for Donald Trump will mean a president unchecked by the criminal law.
During the faceoff between the former president and Vice President Kamala Harris, each candidate discussed their views about abortion, immigration, and the economy. But one moment laid bare the consequences of returning Trump to the White House. Harris pointed to the Supreme Court’s decision in July 2024 holding that a president is immune from criminal prosecution for official acts. Then she warned: “Understand what it would mean if Donald Trump were back in the White House with no guardrails, because certainly we know now the court won’t stop him. It’s up to the American people to stop him.”
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In the Supreme Court’s view, immunity is required to ensure that a president may engage in “bold and unhesitating action.” The dissenting justices noted that the Court’s decision means that a president could not be criminally prosecuted for using his official power to, for example, order Seal Team 6 to assassinate a political rival, organize a coup to hold onto power, or accept a bribe in exchange for a pardon. The majority called these examples “extreme hypotheticals.” But they did not disagree. After Republican senators twice demonstrated their reluctance to convict a member of their own party for misconduct in office, the elimination of criminal prosecution has transformed the presidency into a position of unbridled power.
A return to the White House would mean that Trump would certainly direct his attorney general to dismiss the federal criminal cases against him. Trump has been charged in federal court with unlawfully retaining national defense information and conspiring to interfere with the 2020 presidential election, both of which remain pending in the courts. During the debate, he referred to these prosecutions as the “weaponization” of the Justice Department, even arguing without basis that the criminal cases against him in New York and Georgia were directed by the Department of Justice.
During Trump’s first term, Special Counsel Robert Mueller investigated Trump for potential crimes for obstructing Mueller’s investigation into conspiring with Russia to interfere with the 2016 election. Following the Court’s recent immunity decision, a federal criminal investigation would not be possible because a president could not be charged for his directives to the Department of Justice. And if such an investigation were to begin, a president could overtly pull the plug without criminal consequence. As a result, Trump would be undeterred from engaging in the very parade of horribles imagined by the dissenting justices.
In another Trump presidency, he could also make good on his threats to prosecute his rivals without fear of criminal accountability. In June, Trump said in an interview, “Look, when this election is over, based on what they’ve done, I would have every right to go after them,” repeating his claim that the criminal cases against him are politically motivated. Trump has also said, “It’s a terrible, terrible path that they’re leading us to, and it’s very possible that it’s going to have to happen to them,” and has told supporters, “I am your retribution.” Without evidence of criminal misconduct, such prosecutions would be unlikely to pass the review of a grand jury, which must find that evidence establishes probable cause to believe that a crime has been committed. And even if a case made it past a grand jury, a judge would surely dismiss a case brought solely for political reasons on the basis of selective or vindictive prosecution. But even subjecting a political opponent to malicious criminal prosecution would harm their reputation, require them to pay legal fees, waste scarce government resources on baseless charges, undermine the reputation of the criminal justice system, sow discord in society, and distract our government from addressing real problems.
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Finally, a return to the Oval Office for Trump would likely mean clemency for the defendants who attacked the U.S. Capitol on Jan. 6, 2021. Trump distanced himself from the attack during the debate, claiming that all he did was give a speech, but he also blasted law enforcement for the death of Ashley Babbitt, a rioter who was shot and killed while attempting to climb through a broken window to breach the Speaker’s Lobby during the attack. Though, just this past July, Trump has said he would “absolutely” pardon the attackers who are innocent. To date, more than 1,200 people have been convicted of charges that include assaulting police officers, obstructing official proceedings and seditious conspiracy.
In Trump’s view, “Ashley Babbitt was shot by an out-of-control police officer that should have never, ever shot her. It’s a disgrace.” In fact, the disgrace was the attack on democracy and the rule of law, which requires us to settle disputes through arguments in courts of law, not through brute force in the halls of Congress.
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Trump seeks to return to the world’s most powerful office. The debate showed that this time, the courts will not be able to protect the American people.
