How racism, terrorism and police brutality paved the way for presidential immunity
OPINION: To understand the history behind Donald Trump’s get-out-of-insurrection-free card, look no further than America’s history of white supremacy.
Editor’s note: The following article is an op-ed, and the views expressed are the author’s own. Read more opinions on theGrio.
On Monday, the U.S. Supreme Court ruled that laws don’t apply to presidents.
“Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution,” reads the most aptly named Supreme Court ruling ever, Trump v. United States. “[H]e is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.”
The 6-3 decision outraged non-insurrectionists and people who don’t storm Capitol buildings. Some (mostly white people) were appalled to discover that get-out-of-jail-free cards actually exist. Others wondered how someone with “justice” in their job description could exempt some people from the American judicial system.
The answer is racism.
Although people who affix straps to their wraparound sunglasses and wear khaki shorts to Easter services often lament the practice of “making everything about race,” the history of race in America is at the root of many of the things we take for granted. When trying to understand a nonsensical law, policy or any social convention that doesn’t make sense, the answer is usually buried inside America’s racial skeleton closet. Racism explains it all.
Wanna know why presidential elections are decided by the archaic Electoral College instead of the popular vote? Racism. America’s allegiance to white supremacy is why we have to drive so far to find a grocery store, a doctor’s office or a good school. It explains SAT scores, your home value, your credit rating and your car insurance premium. How many championships would your favorite team have if the NFL, the NBA and Major League Baseball hadn’t banned Black athletes? The number is impossible to calculate because, in America, racism is not just a problem …
It is always the answer.
Even with a Black female Supreme Court justice, our judicial system is still mired in the legacy of America’s true national pastime. Black Americans have practiced law and served as judges for most of this country’s existence. But once you learn that 1993 was the first year in history that the federal judiciary wasn’t at least 90% white, you understand why Black people had “no rights which the white man was bound to respect.”
Monday’s Supreme Court decision is no exception to the racism rule. Beneath the outrageous exterior of the outlandish decision to grant Trump a presidential thug license lies a history lesson on how racial terrorism, police brutality and anti-Blackness became part of America’s official white privilege package.
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The road to Trump’s immunity began during the Reconstruction Era. Angered by the passage of the 13th, 14th and 15th Amendments, white Americans in the North and South engaged in a nationwide terror campaign to reassert their racial supremacy. Beginning in 1870, Congress passed three Enforcement Acts to protect the newly emancipated Black citizens from the epidemic of white supremacist violence. Although they were collectively known as the Ku Klux Klan Acts, the Third Enforcement Act was specifically aimed at law enforcement officers, judges and government officials who violated the constitutional rights of the formerly enslaved. An updated version of the law was codified in Title 42, Section 1983 of the U.S. legal code.
Anyone who violated another person’s constitutional rights “under the color of law” could be held responsible under section 1983. Brown v. Board of Education was a Section 1983 case. The civil suits that established Miranda rights and awarded Rodney King $3.8 million for excessive force were filed under the statute. For years, Section 1983 served as the basis for lawsuits against racist police officers, corrupt government officials and “every person” who subjected anyone in America “to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.”
Well, not “every person.”
On Sept. 11, 1961, 15 Episcopal priests met in New Orleans to join the Freedom Rides as part of the effort to desegregate bus transportation. During one of their stops, they were approached by two Jackson, Miss., police officers and charged with “breaching the peace,” a Mississippi law that was used exclusively against Black protesters. After a local judge sentenced the group to four months in jail, the Freedom Riders sued under Section 1983, the plaintiffs appealed the guilty verdict until the suit reached the Supreme Court.
By the time the Supreme Court decided the case, the Mississippi law had already been declared unconstitutional. It was clear that the police officers and their chief had targeted the activists because of their race. The judge’s racial bias was obvious. Still, to absolve the white officials, the Supreme Court justices created a new legal standard where none had previously existed. In Pierson v. Ray, the court declared that all judges were exempt from the law that was created — and this is the important part — to hold racist judges accountable. The court didn’t grant the police officers the same “absolute and unqualified immunity” as judges. Instead, it found that cops were entitled to “qualified immunity” if they were acting in good faith.
And just like that, white supremacy created an escape hatch for every racist police officer in America.
While many legal scholars argue that the entire concept of “qualified immunity” is illegal, conservative justices have repeatedly expanded the loophole to allow abusive police officers and corrupt government officials to avoid being held accountable. After a Texas cop shot an “unarmed, non-threatening suspect from 90 yards away,” a federal appeals court hearing the 1983 case used qualified immunity to explain why they “cannot conclude that [the victim’s] right to be free from excessive force was clearly established.” And in 1971, the Supreme Court granted Richard Nixon and all future presidents “absolute immunity” from civil — but not criminal — prosecution.
Those are not random examples. Nixon v. Fitzgerald and the concept that a law must be “clearly established” are part of the legal rationale used to bestow immunity on future fuhrer Donald Trump. That’s right, the supposed “constitutional textualists” who sit on the Supreme Court based their decision on a wholly made up, possibly illegal concept that was weaponized against Black Americans even though it appears nowhere in the text of the Constitution. “In this case, there has been much discussion about ensuring that a President ‘is not above the law,’” writes Clarence “Flew’d Out” Thomas in his completely factless concurrence. “But, as the Court explains, the President’s immunity from prosecution for his official acts is the law.”
Chief Justice John Roberts, using a quote that explains why racist cops got away with attacking Freedom Riders inside of a quote excusing Richard Nixon’s corruption might be my favorite Supreme Court footnote of all time. “In Nixon v. Fitzgerald, for instance, we recognized that … a former President ‘is entitled to absolute immunity from damages,” wrote Roberts. “Fitzgerald, 457 U. S., at 751–753 (quoting Pierson v. Ray, 386 U. S. 547, 554 (1967)). We therefore concluded that the President must be absolutely immune from ‘damages liability for acts within the ‘outer perimeter’ of his official responsibility.”
Fortunately, there is a constitutional remedy for this decision. Ultimately, Trump v. United States is a legal hail mary to dismiss the federal election fraud indictment stemming from the president’s actions on Jan. 6. According to the Constitution, Congress can simply hold impeachment hearings and — oh wait …
Never mind.
Interestingly enough, there is one good side to the Supreme Court decision. Aside from making white privilege a constitutional right, Trump v. United States also grants the president the authority to conduct “sham” investigations, even if they are for an “improper purpose.” You know Trump was prepared to tell his next attorney general (Marjorie Taylor Greene, probably) to arrest Obama for wearing a tan suit or use Biden’s “alley cat” comment to charge Joe Biden with defamation. But because the men Trump hates the most are presidents, the SCOTUS ruling prevents him from targeting his most detested rivals.
As of now, there’s nothing to prevent Trump from defunding historically Black colleges or using the military to attack Black protesters. OK, those are probably bad examples; he already tried to do that. But what’s stopping him from ordering a drone strike on a Mexican caravan or using slave labor to build his border wall? What if he pardons all the white supremacists and makes calling someone a “Karen” a federal crime? As unlikely as it seems, how can we be sure? And yes, I know journalists shouldn’t make stuff up without any facts or evidence …
But apparently, that’s how you become a Supreme Court justice.
Michael Harriot is a writer, cultural critic and championship-level Spades player. His NY Times bestseller Black AF History: The Unwhitewashed Story of America is available in bookstores everywhere.
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