Very Strange Theory

Samuel Alito Has a Very Strange Theory for How to Protect Democracy

The hard-right justice worries that if Trump is prosecuted, defeated presidents might refuse to leave office peacefully.

PEMA LEVY

On Thursday, the Supreme Court held oral arguments over former President Donald Trump’s claims that he enjoys absolute immunity from criminal prosecution for engaging in what he contends were his official duties while in office. And one justice, Samuel Alito, offered a particularly wild theory about how to preserve American democracy and the rule of law.

The case centers on whether special counsel Jack Smith’s indictment of Trump for trying to overturn the 2020 election can proceed or whether—as Trump contends—he is above the law when it comes to his conduct leading up to the January 6 insurrection. Much of Thursday’s hearing revolved around a debate over which of two possibilities poses a greater threat to American self-government: that defeated presidents might fear prosecution by vindictive political enemies upon leaving office, or that sitting presidents—secure in the knowledge that their legal misdeeds cannot be punished—might reign with impunity. Based on their questions, it seems possible that a majority of the justices prefer the latter. At the very least, the court appeared likely to rule in a way that would immunize at least some of Trump’s efforts to steal the presidency, an outcome that could delay his trial until after the 2024 election, if it happens all. 

During oral arguments, several Republican-appointed justices expressed concern that without immunity, former presidents might suddenly begin to face criminal prosecution with regularity. But Alito took this entirely hypothetical concern to an absurd conclusion: He worried that if presidents believed theirs successors could prosecute them, they might refuse to leave office peacefully when they lose reelection. Put another way, presidents need immunity from prosecution in order to encourage them to accept electoral defeat and preserve American democracy.

Considering that this entire case is about a president who sought to illegally remain in office—and whose supporters staged a violent insurrection to help him do just that—this was a stunning argument to make. In Alito’s own words:

I’m sure you would agree with me that a stable democratic society requires that a candidate who loses an election, even a close one, even a hotly contested one, leave office peacefully, if that candidate is an incumbent? All right. Now if an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement, but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy? And we can look around the world and find countries where we have seen this process where the loser gets thrown in jail.

Attorney Michael Dreeben, representing the special counsel, responded: “I think it’s exactly the opposite, Justice Alito.”

The next question went to Justice Sonia Sotomayor, who tried to rebut the idea that to preserve American democracy, we must exempt the president from the nation’s laws. “A stable democratic society needs the good faith of its public officials, correct?” she asked. “And that good faith assumes they follow the law?” 

Sotomayor then pushed at the logic underpinning Alito’s hypothetical and the broader concern of her GOP-appointed colleagues that despite checks meant to protect against politically motivated prosecutions, former presidents might become frequent targets of vengeful presidents and rogue prosecutors. “There is no failsafe system of government,” she said. “Justice Alito went through, step-by-step, all of the mechanisms that could potentially fail” to prevent abusive prosecutions. “In the end, if it fails completely, we’ve destroyed our democracy on our own.” If a future of politically motivated prosecutions of former presidents comes to pass, she argued, America will already have lost its democracy. 

The irony of using Trump as the vehicle for enhancing presidential immunity out of a fear of increased instances of political prosecution never came up. But it’s worth remembering that Trump was elected in 2016 on a platform of locking up his political opponent. Throughout his presidency, he tried to use the Justice Department to launch politically motivated prosecutions and was dismayed that the norm of the department making its own prosecutorial decisions did not break down. He has even complained bitterly that his attorney general and other federal prosecutors refused to help him steal the election.

However, should he become president again, Trump plans to tear down the post-Watergate norm of DOJ independence and wield the department as a prosecutorial weapon upon his opponents. “I will appoint a real special prosecutor to go after the most corrupt president in the history of the United States of America, Joe Biden, and the entire Biden crime family,” Trump said last year. Trump is literally threatening to do what Alito, along with Justices Brett Kavanaugh and Neil Gorsuch, openly fretted about on Thursday. Clearly, a president attempting to use the government to prosecute political rivals is exactly the kind of person who should not be granted more authority to break the law. 

Earlier in the arguments, Justice Kentanji Brown Jackson helped explain the moral hazard of creating an executive who is immune from prosecution. “If someone with those kinds of powers, the most powerful person in the world with the greatest amount of authority, could go into office knowing that there would be no potential penalty for committing crimes,” she said, “I’m trying to understand what the disincentive is from turning the Oval Office into the seat of criminal activity in this country.”

Alito and his judicial allies appeared open to that bargain—that in order for a president to act unimpeded, and without the fear of prosecution upon leaving office, he should be above the law. If the court ultimately combines this bizarre logic with endless legal delays to help Trump return to the Oval Office, it will usher in the very parade of horribles the conservative majority claims to fear.