The Supreme Court’s decision to grant presidents immunity from prosecution for criminal acts committed while in office not only gives Donald Trump a free pass for his past crimes, but sets a dangerous precedent for all future presidents.

Before Trump, no one had even argued that presidents are absolutely immune from criminal liability after they leave office. Indeed, every president – including Trump himself – assumed the opposite. In his impeachment trial Trump’s lawyers argued against impeachment by conceding that an acquittal would not be the end of potential accountability, because he could be criminally prosecuted after he left office. That concession was in line with all prior presidents’ acceptance that the United States is a place where all citizens, including the president, are equal under the law.

No more. In Trump v. United States, the court’s Republican-appointed justices — including the three Trump appointees — announced a brand new constitutional immunity from criminal liability for presidents’ “official acts,” or anything a president may do using the powers of the office. The court’s decision ensures that future presidents — including Trump himself should he win reelection in November — will know that they can escape criminal accountability for blatantly criminal acts, no matter how corrupt. Even acts that strike at the heart of our democracy, like resisting the peaceful transition of power, could not be prosecuted.

The court tried to cast its opinion as restrained, emphasizing that it rejected former President Trump’s most extreme claim: that presidents can only be prosecuted for crimes for which they had already been impeached. But as Justice Sonia Sotomayor pointed out in a powerful dissent, there is nothing measured about the opinion or its consequences. The court grants absolute immunity against criminal prosecution for any of a president’s “core” executive acts, which the court went on to define as including any use of the Justice Department—an ostensibly and traditionally independent agency–for criminal investigation. And it grants “presumptive” immunity for any acts within the “outer perimeter of his official responsibility.” While the latter immunity is in theory rebuttable, the court set such a high standard for rebutting it that it may be effectively absolute as well.

The court did hold that a president can be prosecuted for unofficial, purely private acts, a proposition even Trump did not dispute. But the court’s conception of official acts is strikingly broad. Worse, the court also held that official acts cannot even be used as evidence to support a crime committed in the president’s personal capacity, making it even more difficult for prosecutors to indict a president even for purely private criminal acts. The court purports to leave much of the work of hashing out the details in Trump’s case to lower courts. But the standards it announced will make holding any president criminally accountable extraordinarily difficult.

The immediate consequence of the decision is that it sends the current federal prosecution of former President Trump for interfering in the 2020 election into disarray. True, that prosecution is not yet dead. Formally, the Supreme Court only conclusively disqualified one set of allegations — those involving Trump’s communications to the Department of Justice — from the indictment. But as a practical matter, the fact-laden inquiry in which the district court must now engage, and any appeals thereto, will take many months if not years to resolve — all before any trial can commence. In addition, President Trump has already moved to wipe out his criminal conviction in New York State.

As Justice Robert Jackson warned in his dissent in the notorious Korematsu case upholding the federal government’s internment of Japanese Americans, the court’s opinion sits like a loaded weapon for future presidents, who can now avoid criminal liability for all manner of criminal ends so long as they do so through arguably “official” authorities.

As Justice Sotomayor wrote in her dissent:

The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.

If former President Trump manages to win November’s election, it does not take much imagination to see just what kinds of retribution, or worse, the court has now greenlighted him to pursue against his political enemies.

But it’s important to remember that while this decision removes the possibility of criminal accountability, other forms of accountability remain. As long as this misguided decision remains the law, we must fight presidential abuses of power in other ways. In particular, we must resist encroachments on our rights and liberties, criminal or otherwise, before they happen — through civil lawsuits, the ballot box, and in the halls of power across the country. During the Trump administration, we filed more than 400 legal actions to defend constitutional rights and liberties from his administration’s unprecedented assaults — and often succeeded in halting illegal acts.

If he is elected again, we will be ready to do the same. Already our teams have drafted our response to the civil liberties and civil rights abuses outlined in Trump’s transition project, and we promise to challenge any acts – official or not – that violate the Constitution.

The threat of criminal prosecution is an important incentive to keep presidents from breaking the law. It’s largely gone now thanks to the Supreme Court. But it is only one form of accountability and constraint — one that, we should remember, had never been resorted to in the past. As they always have done, the courts can still enjoin illegal presidential behavior. Congress has important powers of oversight, the purse, and lawmaking that can check even a rogue president. And perhaps most important, by voting like our rights depend on it, we can all help ensure that future presidents will leave the court’s loaded gun in its holster.

The CIA is so known for its unabashed secrecy that, when it joined Twitter in 2014, its first tweet was: “We can neither confirm nor deny that this is our first tweet.” This non-response response is known as a “Glomar,” and while the intelligence community likes to poke fun at how often they invoke it, this inane phrase has allowed the CIA to skirt meaningful transparency and accountability for decades.

In 1966, over the Johnson administration’s opposition, Congress enacted the Freedom of Information Act (FOIA), giving all of us the right to ask the government for documents and have the government respond, as it believed such access was a prerequisite to a functioning democracy. Soon after FOIA was passed, a Soviet nuclear submarine went missing somewhere in the Pacific Ocean, and the CIA took an early opportunity to undermine this new law.

Connell v. CIA – FOIA Lawsuit Seeking Records About CIA “Operational Control” Over a Detention Facility at Guantánamo Bay

The CIA has refused to disclose whether it has records about its operational control over Camp VII, a detention facility at Guantánamo Bay. Given...

Source: American Civil Liberties Union

The Soviet Union and the United States raced to locate the missing sub and extract the intelligence likely inside. But first, the U.S. needed to build a ship that could actually extract the sub once it was found — and the government wanted no one to know about it. The CIA contracted this mission out to Howard Hughes, a billionaire with little concern for government transparency, who told the media that the purpose of the ship (named the Hughes Glomar Explorer) was to extract manganese nodules from the ocean floor. Six years later, in 1974, the extraction began. Unfortunately for the U.S., the extracted sub broke into pieces and what the government most wanted was lost: the ship’s code machine and two nuclear missiles. Details of this secret, bungled extraction started to leak, inaccuracies and half-truths swirled, and people rushed to file FOIA requests hoping to answer the many outstanding questions.

Worried about the geopolitical consequences, and obsessed with controlling information about its activities, the CIA came up with a novel way to keep the mission secret without telling an all-out lie. The agency decided it would refuse to confirm or deny whether records about the Glomar Explorer’s mission existed, despite the mounting public evidence that they did. And so the “Glomar response” was born. And, in the case of the Glomar Explorer, it worked: Historians claim many documents remain hidden to this day.

Extraordinary Rendition

The ACLU works in courts, legislatures, and communities to defend and preserve the individual rights and liberties that the Constitution and the...

Source: American Civil Liberties Union

Unfortunately, in the decades since the submarine debacle, and especially in the post-9/11 era, we’ve repeatedly seen the CIA use the Glomar response to evade responsibility. They have used it to claim they could not say whether they had information about the government’s use of drones to carry out lethal strikes overseas, and when asked about legal justifications for the verified extrajudicial killing of three U.S. citizens. They’ve even used it to side-step questions about whether they’ve spied on Congress.

We’re even seeing state agencies attempt to use the CIA’s non-response to circumvent local public records requests. For example, in 2017, the New York Civil Liberties Union filed a public records request seeking documents regarding the NYPD’s monitoring of protesters’ social media activity and cell phones. The NYPD initially responded with a blanket statement that it could “neither confirm nor deny” whether such records existed, saying that even revealing the existence of records could harm national security. A New York court rejected this argument and ordered the NYPD to respond to the request in full.

And the CIA’s penchant for secrecy continues to expand, with the agency using Glomar to obstruct attempts to obtain records that would publicly shine a light on the agency’s failures and abuse, even when that abuse is well documented by the CIA itself and other sources.

Take, for instance, the CIA’s torture program. After the 9/11 attacks, the agency abducted dozens of Muslim men and boys, held them incommunicado, brutally tortured them, and denied the due process in sites around the globe. Once the program was exposed, 14 of the government’s “high-value detainees” were taken to the U.S. military prison at Guantánamo Bay, and detained at a notorious facility known as “Camp VII.” Attorney James G. Connell III, who represents Ammar al Baluchi, one of the men subjected to the CIA torture program and sent to Camp VII, filed a FOIA request with the CIA seeking information about the agency’s “operational control” over the facility. That “operational control” is hardly a secret: it was highlighted in the Senate Torture Report and in CIA and military commissions documents. But instead of processing Mr. Connell’s request, the agency issued what it called a “partial” Glomar response, producing three records, withholding a fourth in its entirety, and refusing to confirm or deny whether any other responsive records exist.

Given the extensive public record about the CIA’s connection to Camp VII, its refusal to acknowledge that it has responsive records both violates the law and defies common sense. That’s why we’re representing Mr. Connell in his appeal in federal court. To uphold its response, the CIA must demonstrate that it is logical or plausible that it has no responsive records in light of the entire record. That’s simply not possible here. We know this because there is an overwhelming amount of public evidence about Camp VII — from the Senate Torture Report, to court documents from the Guantánamo proceedings, to other documents the CIA itself released — that has left no doubt of CIA involvement. And yet, the CIA continues to avoid its legal obligations under FOIA through gaslighting and Glomar.

Connell v. CIA offers a real chance to not only break the CIA’s bad habit of using Glomar to evade transparency and accountability, but also issue a warning to other government agencies that hope to follow in the CIA’s footsteps by leaning into excessive secrecy.