Amicus With Dahlia Lithwick | Opinionpalooza: The Supreme Court Puts Presidents Above the Law (Preview)

Date: July 1, 2024
Host: Dahlia Lithwick
Guests: Mark Joseph Stern (Slate senior writer), Professor Corey Brettschneider (Brown University)

Overview:

This episode dissects the Supreme Court’s controversial new ruling on presidential immunity, which effectively grants sitting and former presidents sweeping protection from criminal prosecution for “official acts.” Host Dahlia Lithwick, joined by legal experts Mark Joseph Stern and Professor Corey Brettschneider, explores why this decision is not just about Donald Trump, but signals a profound shift in the structure of American democracy and presidential accountability.

Key Discussion Points & Insights

1. The Supreme Court’s Grant of Presidential Immunity

• Lithwick frames the conversation: The conservative majority has “gifted massive, unprecedented power to presidents,” fundamentally altering the separation of powers and democratic oversight.
• The decision distinguishes between “official acts” (immunized) and “unofficial acts” (still ostensibly prosecutable), but leaves this critical distinction muddy and highly subjective.
• The practical effect: Presidents may enjoy “wide-ranging immunity,” shielding them even from criminal charges that arise from misusing their official powers.

Quote:

“Coups are constitutional as long as you make them official.”
— Dahlia Lithwick (00:25)

2. Parsing the Majority Opinion’s Logic (00:50 – 05:39)

Mark Joseph Stern explains the core legal mechanics:

• Chief Justice Roberts introduces a taxonomy distinguishing types of presidential acts:
  • Official acts with exclusive authority (e.g., pardons): complete immunity, even if corrupt.
  • Official acts within the “outer perimeter” of authority: presumed immune, subject to theoretical but rarely attainable rebuttal by prosecutors.
  • Unofficial acts: could be prosecuted, but the line is blurred.
• Stern criticizes the test’s lack of clarity:
  • The trial courts are left with a “Ziploc bag full of muddy water.”
  • The president can claim immunity simply by saying an act was official, with courts barred from examining motive.
• The upshot: Near-total, perhaps absolute, protection for anything plausibly asserted as an official act.

Quote:

“What Roberts has delivered is a Ziploc bag full of muddy water. And trying to find clarity in it feels like impossible. And that's the whole point.”
— Mark Joseph Stern (01:40)

Quote:

“Basically, courts have to operate under the assumption that a president is telling the truth when he claims that anything he does falls within the outer perimeter of his authority... In practice, this is just going to mean that anytime the President says, ‘I was doing that because I was president,’ courts are going to grant him immunity.”
— Mark Joseph Stern (04:19)

3. The Sea Change in Presidential Accountability (05:39 – 10:05)

Professor Corey Brettschneider places the decision in historical context:

• Draws a sharp distinction from Nixon’s era (Fitzgerald case), where immunity covered civil lawsuits for official acts, not criminal behavior.
• The new ruling goes further: For the first time, criminal acts labeled as “official” are now shielded from indictment.
• The “outer perimeter” idea, lifted from Fitzgerald, gets radically expanded—now offering a much broader shield for presidential actions.
• Key concern: Even criminal acts performed in “bad faith” may be protected, provided they’re claimed as official.
• This isn’t just about Trump—future presidents could exploit the ruling for impunity, threatening the very foundations of democratic accountability.

Quote:

“They have really rewritten presidential power and aggrandize it in an extreme sense…well beyond anything that I think could have been contemplated in the Nixon era or in recent history, really.”
— Corey Brettschneider (06:24)

Quote:

“By definition, a criminal act is a bad faith act. And yet what they have said…even former presidents, when it comes to official acts, can’t be charged with a crime…[that] is a sea change.”
— Corey Brettschneider (07:23)

• On January 6th: The ruling delays substantive judgment, sending the case back down to lower courts to determine if Trump’s actions were “official,” possibly resulting in indefinite delay and, if re-elected, effective permanent immunity.

Notable Quotes & Memorable Moments

• Lithwick reframes the take-away:

  “This is not a Donald Trump story. This is a separation of power story and fundamentally a structural change to democracy as we understand it.”
  (06:06)

• On the difficulty of holding presidents to criminal account (Stern):

  “…every single thing the President ever claims to have done because he's president gets this sweeping immunity...near absolute in practice.”
  (04:55)

Timestamps for Important Segments

• 00:05 – Dahlia Lithwick introduces the topic and stakes.
• 01:38 – Mark Joseph Stern explains the opinion’s mushy distinction between official and unofficial acts.
• 05:39 – Corey Brettschneider contextualizes the sea change from civil to criminal immunity.
• 10:05 – End of content; subscription pitch and preview for upcoming episodes.

Tone & Style Notes

• The conversation is urgent, candid, and deeply critical, reflecting alarm at the implications for democratic norms and accountability.
• Complex legal doctrine is translated into plain-English analogies (“Ziploc bag full of muddy water”; “big bag of slop”).
• Each speaker maintains a clear, non-partisan focus on the institutional stakes rather than politicized personalities.

Conclusions

This episode of Amicus warns that the Supreme Court’s new doctrine on presidential immunity not only shields Donald Trump, but grants vast, unprecedented impunity to all future presidents—a tectonic legal shift with potentially profound consequences for American democracy. The boundaries between lawful executive action and criminal abuse of power have never been more blurred, raising urgent questions about the future of presidential accountability.