The Supreme Court may have set the stage for an Imperial Presidency. Biden may have put himself in a difficult position. How do we prevent disaster?

Two events this past week have put our democracy in jeopardy: the Supreme Court’s ruling on presidential immunity and President Trump’s impeachment. Joe BidenHis puzzling performance in the debate with the former president Donald Trump, who spent much of his time on the air telling lies and threats. Both cases, each historic in its own way, created a unique crisis that required Americans and their leaders to respond to avoid the clear dangers of a second Trump presidency.

I have spent the past twelve years working with John Dean, Former Nixon White House Counsel, creating continuing education legal seminars on presidential ethics and power. I am also a lawyer and presidential historian, having written books and articles on Wilson, Harding, FDR, Nixon, LBJ, Trump, and JFK. Even if you are not a student of American history, it is not difficult to realize that we are at a turning point that will determine whether we continue to pursue democracy or descend into dictatorship.

The Supreme Court’s ruling on immunity is, in effect, an invitation to the president to absolve himself. The ruling ensures that between now and November, Trump will not face trial on Justice Department charges related to his actions during the January 6 insurrection. The ruling also places Justice Tanya Chutkan, The federal court judge overseeing that indictment is in a legal bind as she decides whether any of the charges brought by the special counsel Jack Smith will have to go to court—and that’s true even if Biden or another Democrat wins. If Trump To be is elected president, it is almost certain that he or his new attorney general will dismiss Smith’s allegations. A Republican-controlled Congress could proceed recent calls for dissolution Smith’s office. And that’s just the beginning. It’s not inconceivable that Trump and his legal team will go further: moving to dismiss his other lawsuits in light of the Supreme Court ruling, and then, most likely, consolidating power at the executive level, exercising a level of immunity that the Constitution’s founders never imagined.

Faced with this prospect, American voters have only one choice to strengthen the wall between popular power and the unfettered power of the president. Trump must be defeated at the polls. If that happens, and if voters elect a Democratic Congress (a big “if”), then there must be a serious debate about whether the Supreme Court should be expanded beyond its current nine justices. Such an expansion is not unthinkable. The number of judges has changed. since the Court was established in 1789. Impeachment proceedings may also be necessary against current justices who were compromised by gifts; those who committed perjury to get onto the Court in the first place; or those who secretly supported the rebellion and failed to resign in any case by January 6.

But achieving such results will be an enormous challenge.

Supreme Court exemption decision is a hot mess. It provides absolute immunity to a president from criminal prosecution for “acting in [the president’s] constitutional authority is conclusive and prior.” Furthermore, the Court has found that the president “enjoys at least temporary immunity from prosecution for all his official acts.” Conversely, the Court has held that “there is no immunity for non-official acts.”

But what does that mean?

It sounds reasonable, in fact, to find immunity when a president acts “within the scope of his constitutional and discretionary powers,” which involve his command-in-chief or “care” powers (that is, ensuring that the laws are faithfully executed). The problem is that the Court, in applying its own reasoning to Trump’s indictment, let him overstep a key point: that he had asked Justice Department officials sent a fake letter for states claiming that the DOJ found evidence of election fraud. At the same time, the court’s decision left open the question of whether Trump’s pressure on then-vice president Mike Pence—to fraudulently change the election results at the January 6 certification hearing—may itself be illegal. The court found that Trump’s pressure on Pence involved “official conduct,” but the justices applied only the “presumptive immunity” test. In Justice John RobertsAccording to the majority opinion, the burden rests on the government—the Department of Justice—to rebut the presumption of immunity by demonstrating that prosecution of the offense would not “pose any risk of interference with the powers and functions of the Executive Branch.”