The Supreme Court's Immunity Ruling
"No One Can Guarantee that Trump Is the Last Maniacal Sociopath Who Will Want Power in America"
Renowned Harvard law professor Laurence Tribe is appalled by the recent Supreme Court ruling granting U.S. presidents immunity for "official acts." He believes the step to a dictatorship is a small one.
Interview Conducted by Bernhard Zand in New York
DER SPIEGEL: Professor Tribe, the United States is currently celebrating Independence Day.
But earlier this week, the Supreme Court handed down a ruling that could hand future U.S. presidents with the powers of a king.
Is the country on its way to becoming an autocracy.
Tribe: I think it's even worse than that.
I’m reminded of the action taken in Germany, in January of 1933, of making Adolf Hitler chancellor, and then giving him dictatorial powers three months later ...
DER SPIEGEL: ... through the so-called Enabling Act ...
Tribe: ... which de facto suspended the constitution of the Weimar Republic.
Although the Supreme Court's decision does not literally suspend the American Constitution, it comes very close, because it leaves our system with no way of checking or limiting even the most grievous crimes by whoever holds the office of president.
DER SPIEGEL: President Joe Biden said that in future there will be "virtually no limits on what the president can do.”
Isn't that an exaggeration?
Tribe: I don't think it is an exaggeration.
The only limits now are the president’s own character and his own morality.
DER SPIEGEL: But there is still the possibility of removing a president from office through impeachment.
"We have seen how far attempts to impeach and remove a president go."
Tribe: We have seen how far attempts to impeach and remove a president go.
Donald Trump violated the most fundamental principles when he tried to overturn the election that ended his presidency.
That wasn't enough to remove him from office.
The impeachment process has proven ineffective.
In truth, it was only the prospect of eventually being criminally prosecuted that limited American presidents.
When Richard Nixon resigned from the presidency in 1974, the impeachment process had not yet been rendered as ineffectual as it is today.
Nevertheless, his successor Gerald Ford pardoned him because he feared that Nixon could be criminally prosecuted for the way he abused the Justice Department.
But the Supreme Court ruling now says that a president enjoys absolute immunity, even if he directs the attorney general to take action against a political opponent, which is an obvious abuse of power.
So, I don't think President Biden exaggerated the effect of this terrible decision.
DER SPIEGEL: Chief Justice John Roberts, who wrote for the majority, was a student of yours.
Are you still in contact with him or with other Supreme Court justices?
Tribe: I don’t talk about my personal communications with them, but I think it’s fair to say that I’m in contact with some of them in a purely appropriate way.
That is, I wish them well and they wish me well.
But I certainly don't try to influence what they do.
DER SPIEGEL: John Roberts used to be considered a moderate conservative.
Have you been surprised to see how his stance has changed in recent years?
Tribe: Yes, somewhat surprised.
When he was my student, he was quite conservative, but he wasn't a radical.
He certainly didn't appear to be the extremist he has now become.
I think the addition of the three judges appointed by President Trump has emboldened him more than it chastened him.
DER SPIEGEL: You are referring to Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, who are considered staunch conservatives.
Tribe: I would have hoped that Roberts' sense of duty to the institution of the Supreme Court and, more importantly, to the structures of the American system of government, would have led him to moderate their extremism.
Instead, I think they have influenced him in a way that has made him more radically right wing than he ever was before.
"When the president can commit what would be a crime for anyone else and not be held responsible ever, he is essentially given the kind of power that only emperors have ever exercised."
DER SPIEGEL: Your Harvard colleagues Steven Levitsky and Daniel Ziblatt, authors of the book "How Democracies Die,” doubt the democratic legitimacy of the Supreme Court.
They see it as dominated by the Republican Party, which has won the popular vote only once in the past 30 years but has appointed six of the nine judges to the Supreme Court.
Levitsky and Ziblatt speak of a "tyranny of the minority.”
Tribe: My colleagues in the government department are exactly right.
It is a dangerous phenomenon.
Minorities are entitled to protection in every respect.
But no minority should be able to run roughshod over the majority.
After all, it is not a minority of the oppressed that has gained such power in our system.
It is the minority of those with the greatest wealth and the best connections.
And they are now running the show in a way that is very dangerous to our democracy.
DER SPIEGEL: It is common in many political systems for sitting politicians to enjoy immunity.
Why is the current ruling by the U.S. Supreme Court so significant compared to other nations?
Tribe: In most European countries, at least so far, the power of heads of government is limited by parliaments.
In the U.S., the power of Congress over the president is more limited, because there are areas where the president has exclusive authority, primarily with respect to defense and foreign affairs.
But even in the domestic sphere, the president is now allowed to act as he pleases and even commit criminal acts without consequence.
When the president can commit what would be a crime for anyone else and not be held responsible ever, he is essentially given the kind of power that only emperors have ever exercised.
"People mistrust each other, they mistrust the press, they mistrust the election results. It's a terrible crisis and we're in the midst of it."
DER SPIEGEL: However, the Supreme Court ruling applies to all presidents, whether they are Republicans or Democrats.
Is this ruling only being received so critically because there are currently many indications that Donald Trump will once again become president?
Tribe: The alarm, at least that I felt, is obviously accentuated by the fact that the person who could benefit most immediately from this extreme amount of power is Donald Trump – a man who has publicly stated his intention to act as dictator from the first day of another presidency and to make vengeance against his political opponents a primary objective.
But even if we had a George Washington who was about to become president: This court has written a rule that unless a future Supreme Court overrules it or our Constitution is amended, will apply to all future presidents.
My grandchildren are between one and 20 years old.
When I look over the horizon, I fear for their future.
Because no one can guarantee that Donald Trump is the last maniacal, narcissistic sociopath who will want power in America.
DER SPIEGEL: Republican politicians and lawyers have been working for a long time to endow the office of president with greater powers.
Tribe: Yes, this is the so-called "unitary executive theory."
The Supreme Court sort of adopted this approach by emphasizing that the person who holds the presidency is an entire branch of government.
A ruling in a similar vein was handed down a few days ago.
That was a case that essentially said that federal agencies no longer have the authority to interpret ambiguous legislation of Congress.
Congress cannot possibly legislate complex problems of environmental, economic or health policy down to the smallest detail.
That's why we have to rely on the expertise of federal agencies such as the Environmental Protection Agency, the Food and Drug Administration, the Securities and Exchange Commission or the Federal Reserve Board.
Until now, American courts were supposed to defer ambiguous cases in these fields to the judgement of these agencies.
In the future, however, it will be the federal judiciary that has the last word in such cases.
The net result is that we will have an imperial unitary executive, an imperial judiciary, and a very weakened parliament.
The presidency is given much more power, and these agencies will simply be part of the executive.
DER SPIEGEL: Do you fear that the extreme polarization of American society could also spill over into the judiciary and plunge the country into a constitutional crisis?
Tribe: I believe we are already in a constitutional crisis – in part precisely because of that deep division.
People mistrust each other, they mistrust the press, they mistrust the election results.
It's a terrible crisis and we're in the midst of it.
Certainly, no election in my lifetime has been as consequential as the forthcoming one in answering the question if we will weather this crisis or succumb to the supreme dangers of a dictatorship.
Laurence Tribe, born in 1941, is considered an expert on the U.S. Constitution. Born in Shanghai to Jewish parents, he moved in 1947 to San Francisco, where he grew up. He studied at Harvard University, initially majoring in mathematics before shifting his focus to law. He became a professor at Harvard Law School in 1972, where he taught up-and-coming jurists, some of whom have since become famous. Former U.S. President Barack Obama spent two years as Tribe's research assistant. Senator Ted Cruz, Attorney General Merrick Garland, Supreme Court Chief Justice John G. Roberts and Supreme Court Justice Elena Kagan all studied under Tribe.
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