The notion that Donald Trump’s supporters believe that he should be able to overthrow the government and get away with it sounds like hyperbole, an absurd and uncharitable caricature of conservative thought. Except that is exactly what Trump’s attorney D. John Sauer argued before the Supreme Court yesterday, taking the position that former presidents have “absolute immunity” for so-called official acts they take in office.

“How about if a president orders the military to stage a coup?” Justice Elena Kagan asked Sauer. “I think it would depend on the circumstances whether it was an official act,” Sauer said after a brief exchange. “If it were an official act … he would have to be impeached and convicted.”

“That sure sounds bad, doesn’t it?” Kagan replied later.

The Democratic appointees on the bench sought to illustrate the inherent absurdity of this argument with other scenarios as well—Kagan got Sauer to admit that the president could share nuclear secrets, while Justice Sonia Sotomayor presented a scenario in which a president orders the military to assassinate a political rival. Sauer said that might qualify as an official act too. It was the only way to maintain the logic of his argument, which is that Trump is above the law.

[David A. Graham: The cases against Trump: A guide]

“Trying to overthrow the Constitution and subvert the peaceful transfer of power is not an official act, even if you conspire with other government employees to do it and you make phone calls from the Oval Office,” Michael Waldman, a legal expert at the Brennan Center for Justice, a liberal public-policy organization, told me.   

Trump’s legal argument is a path to dictatorship. That is not an exaggeration: His legal theory is that presidents are entitled to absolute immunity for official acts. Under this theory, a sitting president could violate the law with impunity, whether that is serving unlimited terms or assassinating any potential political opponents, unless the Senate impeaches and convicts the president. Yet a legislature would be strongly disinclined to impeach, much less convict, a president who could murder all of them with total immunity because he did so as an official act. The same scenario applies to the Supreme Court, which would probably not rule against a chief executive who could assassinate them and get away with it.

The conservative justices have, over the years, seen harbingers of tyranny in union organizing, environmental regulations, civil-rights laws, and universal-health-care plans. When confronted with a legal theory that establishes actual tyranny, they were simply intrigued. As long as Donald Trump is the standard-bearer for the Republicans, every institution they control will contort itself in his image in an effort to protect him.

The Supreme Court, however, does not need to accept Trump’s absurdly broad claim of immunity for him to prevail in his broader legal battle. Such a ruling might damage the image of the Court, which has already been battered by a parade of hard-right ideological rulings. But if Trump can prevail in November, delay is as good as immunity. The former president’s best chance at defeating the federal criminal charges against him is to win the election and then order the Justice Department to dump the cases. The Court could superficially rule against Trump’s immunity claim, but stall things enough to give him that more fundamental victory.

If they wanted, the justices could rule expeditiously as well as narrowly, focusing on the central claim in the case and rejecting the argument that former presidents have absolute immunity for acts committed as president, without getting into which acts might qualify as official or not. Sauer also acknowledged under questioning by Justice Amy Coney Barrett that some of the allegations against Trump do not involve official acts but private ones, and so theoretically the prosecution could move ahead with those charges and not others. But that wouldn’t necessarily delay the trial sufficiently for Trump’s purposes.

“On big cases, it’s entirely appropriate for the Supreme Court to really limit what they are doing to the facts of the case in front of it, rather than needing to take the time to write an epic poem on the limits of presidential immunity,” Waldman said. “If they write a grant opinion, saying no president is above the law, but it comes out too late in the year, they will have effectively immunized Trump from prosecution before the election while pretending not to.”

Trump’s own attorneys argued in 2021, during his second impeachment trial, that the fact that he could be criminally prosecuted later was a reason not to impeach him. As The New York Times reported, Trump’s attorney Bruce Castor told Congress that “after he is out of office,” then “you go and arrest him.” Trump was acquitted in the Senate for his attempted coup after only a few Republicans voted for conviction; some of those who voted to acquit did so reasoning that Trump was subject to criminal prosecution as a private citizen. The catch-22 here reveals that the actual position being taken is that the president is a king, or that he is entitled to make himself one. At least if his name is Donald Trump.

[David A. Graham: The Supreme Courts goes through the looking glass of presidential immunity]

Democracy relies on the rule of law and the consent of the governed—neither of which is possible in a system where the president can commit crimes or order them committed if he feels like it. “We can’t possibly have an executive branch that is cloaked in immunity and still expect them to act in the best interests of the people in a functioning democracy,” Praveen Fernandes, the vice president of the Constitutional Accountability Center, a liberal legal organization, told me.

The only part of Trump’s case that contains anything resembling a reasonable argument is the idea that without some kind of immunity for official acts, presidents could be prosecuted on a flimsy basis by political rivals. But this argument is stretched beyond credibility when it comes to what Trump did, which was to try repeatedly and in multiple ways to unlawfully seize power after losing an election. Even if the prospect of presidents being prosecuted for official acts could undermine the peaceful transfer of power, actually trying to prevent the peaceful transfer of power is a much more direct threat—especially because it has already happened. But the Republican-appointed justices seemed much more concerned about the hypothetical than the reality.

“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,” Justice Samuel Alito asked, “will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?”

Trump has the conservative justices arguing that you cannot prosecute a former president for trying to overthrow the country, because then they might try to overthrow the country, something Trump already attempted and is demanding immunity for doing. The incentive for an incumbent to execute a coup is simply much greater if the Supreme Court decides that the incumbent cannot be held accountable if he fails. And not just a coup, but any kind of brazen criminal behavior. “The Framers did not put an immunity clause into the Constitution. They knew how to,” Kagan pointed out during oral arguments. “And, you know, not so surprising, they were reacting against a monarch who claimed to be above the law. Wasn’t the whole point that the president was not a monarch and the president was not supposed to be above the law?”

At least a few of the right-wing justices seemed inclined to if not accept Trump’s immunity claim, then delay the trial, which would likely improve his reelection prospects. As with the Colorado ballot-access case earlier this year, in which the justices prevented Trump from being thrown off the ballot in accordance with the Constitution’s ban on insurrectionists holding office, the justices’ positions rest on a denial of the singularity of Trump’s actions.

No previous president has sought to overthrow the Constitution by staying in power after losing an election. Trump is the only one, which is why these questions are being raised now. Pretending that these matters concern the powers of the presidency more broadly is merely the path the justices sympathetic to Trump have chosen to take in order to rationalize protecting the man they would prefer to be the next president. What the justices—and other Republican loyalists—are loath to acknowledge is that Trump is not being uniquely persecuted; he is uniquely criminal.

This case—even more than the Colorado ballot-eligibility case—unites the right-wing justices’ political and ideological interests with Trump’s own. One way or another, they will have to choose between Trumpism and democracy. They’ve given the public little reason to believe that they will choose any differently than the majority of their colleagues in the Republican Party.

As a constitutional scholar and the dean of the UC Berkeley School of Law, I strongly defend the right to speak one’s mind in public forums. But the rancorous debate over the Israel-Hamas war seems to be blurring some people’s sense of which settings are public and which are not. Until recently, neither my wife—Catherine Fisk, a UC Berkeley law professor—nor I ever imagined a moment when our right to limit a protest at a dinner held at our own home would become the subject of any controversy.

Ever since I became a law-school dean, in 2008, the two of us have established a custom of inviting each class of first-year students over for a meal. These dinners help create and reinforce a warm community, and, to accommodate all students, they take place on many evenings during the year. The only exceptions were in 2020 and 2021 because of COVID. So last year and this year, at the request of the presidents of the third-year classes, we organized make-up dinners on three successive nights and invited each of the 400 graduating students to attend one.

The week before the dinners on April 9, 10, and 11, though, a group at Berkeley called Law Students for Justice in Palestine put a profoundly disturbing poster on social media and on bulletin boards in the law-school building. No dinner with Zionist Chem while Gaza starves, the poster declared in large letters. (Students sometimes refer to me as “Chem.”) It also included a caricature of me holding a bloody knife and fork and with what appeared to be blood around my lips—an image that evokes the horrible anti-Semitic blood libel, in which Jews are accused of killing and cannibalizing gentile children. The poster attacks me for no apparent reason other than that I am Jewish. The posters did not specify anything I personally had said or done wrong. The only stated request was that the University of California divest from Israel—a matter for the regents of the University of California, not the law school or even the Berkeley campus.

[George Packer: The campus-left occupation that broke higher education]

Several Jewish students and staff members told me that the posters offended them and asked me to have them removed. Even though their presence upset me too, I felt that I could not take them off bulletin boards at a public law school. Though appalling, they were speech protected by the First Amendment.

The group responsible for the posters was not content to have its say on paper. Student-government leaders told me that Law Students for Justice in Palestine demanded that my wife and I cancel the dinners; if not, the group would protest at them. I was sad to hear this, but the prospect of a demonstration in the street in front of our home did not change our plans. I made clear that we would still host dinners for students who wanted to attend.

On April 9, about 60 students came to our home for dinner. Our guests were seated at tables in our backyard. Just as they began eating, I was stunned to see the leader of Law Students for Justice in Palestine—who was among the registered guests—stand up with a microphone that she had brought, go up the steps in the yard, and begin reading a speech about the plight of the Palestinians. My wife and I immediately approached her and asked her to stop speaking and leave the premises. The protester continued. At one point, my wife attempted to take away her microphone. Repeatedly, we said to her: You are a guest in our home. Please leave.

The student insisted that she had free-speech rights. But our home is not a forum for free speech; it is our own property, and the First Amendment—which constrains the government’s power to encroach on speech on public property—does not apply at all to guests in private backyards. The dinner, which was meant to celebrate graduating students, was obviously disrupted. Even if we had held the dinner in the law-school building, no one would have had a constitutional right to disrupt the event. I have taught First Amendment law for 44 years, and as many other experts have confirmed, this is not a close question.

Some attendees sympathetic to the student-group leader recorded a video. An excerpt of it appeared on social media and quickly went viral. Soon newspapers and magazines published stories about it. Some commentators have criticized my wife for trying to get hold of the microphone. Some have said that I just should have let the student speak for as long as she wanted. But in all of the dinners we have held over more than 15 years, not once has anyone attempted to give a speech. We had no reason to change the terms of the dinner to accommodate someone from an organization that put up anti-Semitic images of me.

After struggling over the microphone, the student said if we let go of it, she would leave. We relented, and she departed, along with about 10 other students—all of whom had removed their jackets to show matching T-shirts conveying a pro-Palestinian message.

[Michael Powell: The unreality of Columbia’s ‘liberated zone’]

The dinners went forward on Wednesday and Thursday. On Thursday night, about 15 people came to our home and stood on the street in front of it, and then on the path directly next to our backyard. They chanted loudly and at times offensively. They yelled and banged drums to make as much noise as possible to disturb the dinner. The event continued.

Being at the center of a social-media firestorm was strange and unsettling. We received thousands of messages, many very hateful and some threatening. For days, we got death threats. An organized email campaign demanded that the regents and campus officials fire my wife and me, and another organized email campaign supported us. Amid an intensely painful sequence of events, we experienced one upside: After receiving countless supportive messages from people we have met over the course of decades, we felt like Jimmy Stewart at the end of It’s a Wonderful Life.

Overall, though, this experience has been enormously sad. It made me realize how anti-Semitism is not taken as seriously as other kinds of prejudice. If a student group had put up posters that included a racist caricature of a Black dean or played on hateful tropes about Asian American or LGBTQ people, the school would have erupted—and understandably so. But a plainly anti-Semitic poster received just a handful of complaints from Jewish staff and students.

Many people’s reaction to the incident in our yard reflected their views of what is happening in the Middle East. But it should not be that way. The dinners at our house were entirely nonpolitical; there was no program of any kind. And our university communities, along with society as a whole, will be worse off if every social interaction—including ones at people’s private homes—becomes a forum for uninvited political monologues.

I have spent my career staunchly defending freedom of speech. As a dean, I have tried hard to create a warm, inclusive community. As I continue as dean of Berkeley Law, I will endeavor to heal the divisions in our community. We are not going to solve the problems of the Middle East in our law school, but we must be a place where we treat one another with respect and kindness.

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