In Inside Courts, retired judge Tom Hodson explains the complexities of the law and legal cases, helping you understand what’s at stake — and how it affects you.
The U.S. Supreme Court has created a real Frankenstein’s monster, called the President of the United States.
The monster can ravage the land and its population with impunity.
He has no checks on his actions.
In fact, he has been given permission to do what he wants and when he wants, regardless of whom he hurts or maims.
He has even been given permission to travel beyond his borders to spread havoc and mayhem abroad.
Realistically, there are no checks against his actions, thanks to six members of the U.S. Supreme Court, three of whom were appointed to their positions by the monster himself.
The person who now embodies this monster’s persona is President Donald J. Trump.
Currently, he is entitled to wage war on the American population, send federal troops to American cities, trample on our First Amendment freedoms, spew racism as part of government policies, eliminate federal programs for children and minority populations, obliterate health care for millions of people at home and abroad, neuter our top universities, and constantly lie to the American people without any repercussions.
He also has been allowed to bomb Iran, attack Venezuela and capture its president and his wife, in addition to bombing numerous foreign boats allegedly carrying drugs on the high seas.
Frankenstein’s monster also has the eyes of toppling leadership in Cuba and Colombia, and either buying Greenland, or taking it by force.
He ignores Congress and the courts and tells the New York Times that his power as commander-in-chief is constrained only by his “own morality,” brushing aside international law and other checks on his ability to use military might to strike, invade, or coerce nations around the world.
Asked in a wide-ranging interview with the NYT if there were any limits on his global powers, Mr. Trump said, “Yeah, there is one thing. My own morality. My own mind. It’s the only thing that can stop me.”
Now, it’s a scary thought that Frankenstein’s own mind is the only thing that can stop him. That gives me chills. But, right now, it is reality.
Let’s circle back to before the presidential election in 2024 to see how this descent into the rings of hell began.
It started with a court case, Trump v. United States, before the U.S. Supreme Court. The case was decided in July 2024 — over three months before the last presidential election.
The case made it to the high court primarily for the purpose of derailing the prosecutions against Donald Trump for federal election interference. The case targeted Special Prosecutor Jack Smith’s charges in Washington, D.C., as well as the secret document case against Trump in Florida.
It also was intended to be a way to avoid prosecution in state courts for election interference and to impede the New York hush-money case where he had already been found guilty of 34 criminal charges but not yet sentenced.
When the case finally arrived at the U.S. Supreme Court for oral argument in April 2024, the Trump legal strategy was to sidetrack cases mounting against him.
Trump’s attorneys argued that a president has immunity for cases concerning his official acts and acts on the perimeter of his official constitutional duties. They also argued that a president may only be held criminally liable if he/she had been previously impeached and convicted by the Senate.
They told the court that any actions Trump had made during his last days in office to overturn the 2020 elections were “official” acts under his presidential powers and therefore, immune from later prosecution.
Trump’s legal team claimed that this immunity is necessary for presidents to act decisively without fear of prosecution from political enemies.
Attorneys for the United States argued that the U.S. Constitution does not grant absolute immunity to the president and that the president cannot use the office to commit crimes, even if part of “official duties.”
They said that the president is subject to the rule of law and is accountable for actions that take place while in office.
On July 1, 2024, the U.S. Supreme Court handed down its 6-3 decision. As the American Civil Liberties Union put it, “Supreme Court Grants Trump, Future President a Blank Check to Break the Law.”
In short, the court found that presidents are above the law. Hence, the birth of our Frankenstein’s monster.
The court established three categories of presidential immunity based on the nature of the presidential conduct. The three categories are “absolute immunity,” “presumptive immunity” and “no immunity.”
Let’s break down what those mean.
Absolute immunity
The court found that presidents have full immunity involving “core or exclusive” constitutional powers.
Trump, today, would argue that acting as commander-in-chief is a core constitutional power and therefore, he can invade other countries or bomb them under the guise of protecting our nation’s security, with complete personal immunity.
He would make similar arguments about his orders regarding deportations and authorizing the terrorism of U.S. Immigrations and Customs Enforcement agents.
Trump would surely claim all his executive orders and presidential proclamations also are protected because they are part of his official duties.
Basically, the court says the person holding the presidency can take any “official action,” without fear of any criminal prosecution. This also includes unleashing the Justice Department to go after political enemies, granting pardons, and appointment of judges and other federal officials.
Some experts say that there would be complete immunity for assassinations ordered by the president.
Frankenstein can run amuck and wreak havoc and no entity can hold him criminally responsible for what he does, if it is an “official act” of the presidency.
Presumptive immunity
The court recognized that there may be some actions of a president that are not part of core presidential constitutional duties but may be on the “outer perimeter” of “official acts.”
Two such perimeter acts, for example, could be things that a president would say at press conferences or things he might say while speaking with foreign leaders, National Public Radio says.
For these actions, the president is “presumptively immune from prosecution.”
That means that to proceed, a prosecutor must prove that the prosecution of the president poses “no danger” to the authority of the presidency, and the evidence presented must be so strong that it overcomes or overwhelms the presumption of presidential immunity.
No immunity
The court recognized that some actions of a president may not be part of the official duties and may, in fact, be private acts. The court said a president would be subject to prosecution for these matters.
However, the court’s definition of official acts is so broad it is difficult to conceive of an action that would fit this “no immunity” category.
To make matters worse, the court threw another wrench into the works by saying that “official acts” cannot be used as evidence to support a crime committed in the president’s personal capacity, according to an ACLU analysis.
So, this category is deemed, by most experts, as being worthless in restraining our Frankenstein’s monster.
Dissent
Several legal experts have turned to past cases that warned checks and balances could evaporate through court decisions that hand all power to the presidency.
For example, Justice Robert Jackson during World War II dissented from the Korematsu case that allowed internment of Japanese Americans. He said: “The court’s opinion sits like a loaded weapon for future presidents, who can now avoid criminal liability for all manner of criminal ends so long as they do so through arguably ‘official’ authorities.”
In her strong dissent in Trump v. United States, Justice Sonia Sotomayor foretold the perils of the unleashed Frankenstein’s monster. She wrote:
The President of the United States is the most powerful person in the country, and possibly the world. When he 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. Organize a military coup to hold power? Immune. Takes a bribe in exchange for a pardon? Immune, Immune, immune, immune.
Conclusion
Frankenstein’s monster continues to roam the earth bringing pain and destruction to almost everything he touches.
We can rightfully blame the monster for what he is doing and the havoc he is causing daily.
But we need to go back to how the monster was created and enabled and that responsibility lies directly with Chief Justice John Roberts, Justice Clarence Thomas, Justice Samuel Alito, Justice Neil Gorsuch, Justice Brett Kavanaugh, and Justice Amy Coney-Barrett.
They spawned the monster that we, as a nation, cannot now restrain.
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