The Path to American Authoritarianism

The Democratic Party’s lawfare campaign against Donald Trump, which recently resulted in a guilty verdict in an absurd trial in New York, may soon come to a halt. The United States Supreme Court is expected to weigh in on the president’s legal immunity after leaving office, with an opinion due in the coming days. 

Once the Supreme Court has spoken, the matter is closed—at least until the Democrats find a way to manipulate their way around the Court’s opinion. President Biden himself has no problem expressing his contempt for the Court when its opinions are to his disliking. 

So far, the Supreme Court has been able to maintain its position as a constitutional anchor. However, if they rule in what can be seen as Trump’s favor in the presidential immunity case, we can expect a barrage of vicious attacks on the Court from the Democratic Party and its affiliates.

The disrespect among the Left for the Supreme Court is not new. It has been building up for a long time, and there is a simple reason for that. As I explain in my book Democracy or Socialism, the ideology of the Left is inherently incompatible with democracy. It coexists with a free system of government only to the point where such coexistence benefits the Left.

The American Left has reached that point. It is trying with increasing aggression to subdue the government system of our constitutional republic, to cut it down to size until it serves as an instrument for its ideological endeavor. 

So far, their success has been limited. The Constitution of the United States, the bedrock of our country, is still standing. It is alive and well in the minds of the American people; in fact, it may be the most vibrant political document ever written. It is being used, read, interpreted, and fought over on a daily basis. For better or worse, our court system is clogged up with constitutional challenges to legislation and policy.

The attempts by the Left to conquer the American government system for their own purpose are one big reason why our judicial system is strained and stretched by overwork and litigation fatigue. With that said, the fact that the Constitution is so alive is in itself a guarantee that anyone trying to manipulate it to their favor will always meet fierce resistance. 

The question is—what happens when the Democrats simply decide to ignore the Supreme Court altogether? They have not done it yet, sticking instead to their efforts to manipulate their ways around the Court’s decisions. But unless the far left loses decisively in a couple of pivotal elections, I fear the day will come when a Democrat president and a Democrat majority in Congress simply decide to ignore the Supreme Court altogether. 

The Court’s pending opinion on presidential immunity could be the catalyst they need. 

There are many reasons to respect the Supreme Court, one being the hardly surprising fact that it is still the final arbiter on the Constitution of the United States. If we do not respect it as such, we also do not respect the Constitution itself. 

Another closely related reason is that when the Court is mutually respected, we maintain peace and respect in the other branches of government as well. This respect comes out of the fact that the Court does not frivolously speak to constitutional matters—it is very selective in what cases it decides to hear, and how many. 

Although the number of cases the Court reviews is not very high—an average of 69 per year over the past ten years—those cases are of exceptional importance. Their selection of what cases to hear is a small fraction of the more than 7,000 cases that are filed with the Supreme Court each year. In other words, if you are a skilled enough lawyer who knows how to file a case with the Court, statistically speaking, you have less than a 1% chance that the Court issues an opinion on your case. 

For Supreme Court buffs, the end of June is the most exciting period of the year. This is when the Court wraps up its latest session. Media and think tanks with a focus on the judicial system are all on high alert, commenting on the wide variety of cases coming out of the Court. Organizations that have filed cases with the Supreme Court are extra nervous: a win for their case means more donors will write them bigger checks; a loss could mean the exact opposite for them. 

One of the cases where the Court has yet to issue its opinion is the one regarding the question of presidential immunity. Specifically: how far does the president’s immunity from prosecution stretch after he leaves office? 

The Gateway Pundit explained the specifics of the case back in April when the Supreme Court

heard oral arguments on Trump’s presidential immunity claim in [Special Counsel] Jack Smith’s January 6 case in [the District of Columbia]. The case made its way to the Supreme Court after the DC Circuit Court of Appeals ruled Trump was not immune from prosecution.

The National Constitution Center has more details, explaining that Jack Smith’s case against Trump

will center on one simple sentence: “whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for the conduct alleged to involve official acts during his tenure in office.”

Plain and simple, if the Supreme Court rules that Trump’s presidential immunity applies to the decisions he made for which Jack Smith has indicted him, then Smith’s case is dead. If, on the other hand, the Court rules against Trump, it means that all presidents can be sued, even indicted, for actions they took and decisions they made while in office. 

The fine lines of the case and the Court’s verdict will be one for legal scholars to debate in the coming months and years. The politically worrisome part is, as mentioned, how the left will respond if the Court rules to their disliking. 

To see why this is such an important issue, let us keep in mind that as a general principle, presidential immunity has a profound positive effect on the stability of the American constitutional republic. Thanks to his immunity—again speaking generally—a newly elected president does not have to start his tenure by taking measures to protect himself against future litigation.

Nor does he start his presidency by waging lawfare against his predecessor. This often happens in more politically corrupt countries but, as many observers have pointed out with reference to the legal cases against Trump, such deeds have been unheard of in the history of the United States since her founding—until now. 

People on the Left tend to say that if the Court says presidential immunity is ‘wide’ and protects Trump in the cases that were brought to the Supreme Court, the Court opens for the president to become a ‘sovereign’ of some kind. The worst pundits—not worthy of being quoted here—even suggest that Trump would use such a verdict to become a dictator.

What they do not tell us is that a ruling in the opposite direction, i.e., one that reins in presidential immunity, would open an even more plausible way to presidential authoritarianism.

Perhaps the Left should start by looking at their own rhetoric. Portraying Trump as a dictator in the making, they effectively make the case for comprehensive presidential immunity. Here is why: a recent batch of opinion polls, as reported by RealClearPolling.com, shows a decisive Trump victory in November. 

Since limitations on Donald Trump’s presidential immunity after leaving office would apply to Joe Biden as well—and to Barack Obama—there is nothing standing in the way of Trump using so-called lawfare to go after them. If he really is the horrible guy they portray him as, they should be worried about what he could do to their two favorite presidents.

No sane person would believe that Trump has authoritarian ambitions, but let us leave that aside. The main point here is that if the Supreme Court limits presidential immunity, there will be strong incentives in the American political system for an authoritarian president to emerge. 

In so many words, it would not take long before sitting presidents make a habit out of waging lawfare against their predecessors—as well as prospective competitors in upcoming elections. 

All it takes is a small deterioration of the moral standard of presidential candidates—that is, a deterioration from where we are now. The increasingly hostile political climate over the past couple of decades has already led to an ethical erosion of our political system; people who are ‘presidential material’ and have the vision, the leadership, and the political experience to become good presidents choose not to run because they or their families cannot withstand the unforgiving pressure of political hostility.

Add to the current climate of hostility the fact that a presidential candidate can expect to have to fight years of legal battles after leaving office, and a destructive process of negative self-selection opens up. Gradually, but inevitably, a candidate’s path to the nomination for president of his or her own party will be guided more by what abilities he has to fend off legal challenges than what he can contribute to the wealth, freedom, and safety of the American people. 

Who could that person be? First and foremost, someone who can fight back and even become a lawfare threat himself after leaving office. This person would have to have financial resources of such an intimidating magnitude that he would not be ruined by fighting indictments from his successor’s lawfare warriors. 

By having financial clout of such a magnitude, a president would be able to tell his indictment-hungry successor: “You indict me, I will use my vast wealth to make the rest of your presidential term a living hell.”

Do we want people with this raw, cynical moral attitude, to hold the presidency? Of course not. But who else would want to do that if retaliatory litigation becomes part of the political game in America?

Another presidential character trait that would emerge from strict limitations on presidential immunity, is the in-office authoritarian. While some speculate erroneously that strong presidential immunity makes the president a king, in reality, it is the minimization of immunity that opens for an outright authoritarian president. 

The first step in that direction would come when the incumbent president, as a preemptive strike against post-presidential indictments, does everything he can—and then some—to fill the federal court system with his own sympathizers. Today, there is a strict constitutional and legal process for how this is done; a president with enough zest for power and control over the future could easily pursue legal, even regulatory measures to increase the president’s influence and reduce—or ‘streamline’—the role that the Senate plays in the judicial nominee process.

Next, a president who wants to shield himself from future indictments would use whatever means necessary, or effective, to control or intimidate the opposition party. By weakening the ‘other side,’ the incumbent president can increase the chances that the next president will be from his own party. This can be done in many different ways; a favorite method in other countries is to use legal minutia to wear down prospective opponents (if lawfare can be used against a former president, it can be used against future presidents as well). When those opponents are bogged down in legal challenges, sooner or later they drop out. 

Third, a president who has strong enough authoritarian ambitions could resort to an effort to repeal the 22nd Amendment, which limits the president to two terms in office. This is a difficult process, likely discouraging all except the most power-hungry from even trying. That exception, though, is the real worry: once we have rid the political system—and especially the presidency—of values, ideals, and a sense that the country is bigger than the president, the only candidates left are those who put themselves first, second, and third—and their country behind last. 

America is at a moral, political, and constitutional crossroads. The Supreme Court is the anchor that keeps us connected to our Constitution. Let us hope that our political leaders do not cut the chain to that anchor.