Were it not for the Supreme Court’s decision last year on presidential immunity, President Trump’s retribution campaign against his perceived enemies would be criminal.
Trump is extorting law firms by threatening their right to represent clients who opposed him. He has coerced eight large law firms into providing him with nearly a billion dollars in free legal representation for causes they would have never championed.
He is extorting colleges and universities such as Harvard by threatening them with the loss of billions in federal dollars and even federal tax-exempt status. His goal is to bludgeon them into foregoing their rights under the First Amendment and surrendering their academic freedom. Trump’s improper goal is to force them into changing what he believes is the left-wing political bias of these academic institutions.
He is directing Attorney General Pam Bondi to conduct bogus investigations into Chris Krebs, his former director of the Cybersecurity and Infrastructure Security Agency, and Miles Taylor, former chief of staff in the Department of Homeland Security. Krebs oversaw cybersecurity in the 2020 election. Contrary to Trump’s false assertions that that election had been rigged, Krebs proclaimed that it was “the most secure in American history.” Taylor anonymously wrote a famous 2018 New York Times op-ed describing “the resistance” within the first Trump administration. He later authored a book criticizing Trump and supported Joe Biden in 2020.
If President Richard Nixon had perpetrated any of these acts, the Watergate Special Prosecution Force would have investigated him for potential violations of federal criminal law arising out of his abuse of presidential powers. I know this because, as a former assistant special Watergate prosecutor, I conducted grand jury inquiries into Nixon’s actions directed against those on his enemies list.
But the law governing a president’s criminal accountability flipped 180-degrees with the Supreme Court’s decision last year granting presidential immunity to Trump in the election interference prosecution. Chief Justice John Roberts held that “the president cannot be prosecuted for conduct within his exclusive constitutional authority,” because “if a former president’s official acts are routinely subjected to scrutiny in criminal prosecutions, ‘the independence of the Executive Branch’ may be significantly undermined.”
The court concluded that “Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.” That holding immunized Trump from prosecution for his illicit plot to elevate Jeffrey Clark to acting attorney general to facilitate the fraudulent substitution of alternative Trump slates of electors in the six battleground states that Biden actually won.
Trump’s direction to Bondi to investigate Krebs and Taylor for opposing Trump, even if it amounts to a crime, falls squarely within the court’s definition of an “official act” that is immune from criminal prosecution.
In response to the Supreme Court’s decision, the White House has cynically dressed up as “official acts” each of Trump’s illegal edicts aimed at law firms, universities and his two former disloyal administration officials. Giving his acts the patina of legitimate presidential power, Trump signed legally unsupported executive orders leveled at the law firms and at Krebs and Taylor and initiated unjustified investigations.
Trump has also misused federal agencies to make his campaign of retribution look like legitimate federal investigations. He directed the Department of Education’s Office for Civil Rights to send investigatory letters warning of enforcement actions to 60 universities for not protecting “Jewish students on campus.” He arranged for similar letters sent to 20 law firms from the Equal Opportunity Commission “requesting information about their diversity, equity and inclusion (DEI) related employment practices.”
Before the Supreme Court’s immunity decision, a diligent prosecutor likely would have attempted to uncover whether Trump’s true motive was to conduct legitimate presidential business or for the improper purpose of violating his enemies’ First Amendment rights. For example, Trump was motivated against the WilmerHale law firm, as reflected in his executive order, for having “rewarded Robert Mueller and two of his colleagues by welcoming them to the firm after they wielded the power of the Federal government to lead a partisan ‘investigation’ against the president and others.”
Krebs’s sin was to rebut Trump’s lies about the 2020 election being rigged. Taylor’s misdeed was to criticize Trump’s management ability. The universities’ “crime” was to allow peaceful campus demonstrations against the war in Gaza — the rationale of protecting Jewish students is an obvious pretext created by a man who in 2022 personally entertained avowed antisemites Nick Fuentes and Kanye West at Mar-a-Lago.
Based on the Supreme Court’s immunity decision, none of this evidence proving Trump’s true motivation can be used to rebut presidential immunity to show that Trump was not acting in his “official” capacity as president. Roberts was clear, writing “in dividing official from unofficial conduct, courts may not inquire into the president’s motives.”
What all this unfortunately shows is that Justice Sonia Sotomayor was spot-on in her dissent that with the majority’s immunity decision, “the relationship between the president and the people he serves has shifted irrevocably. In every use of official power, the president is now a king above the law.”
Nick Akerman, a former assistant special Watergate prosecutor and a former assistant U.S. attorney in the Southern District of New York, is an attorney in New York City.
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