In its extraordinarily disturbing decision earlier this week granting presidents wide-ranging immunity from criminal prosecution, the US supreme court dramatically mis-weighed a competing set of risks to our constitutional democracy.

On the one side of the scale, the court placed the possibility that a future rogue prosecutor will seek to settle political scores by indicting a former president for “insufficiently enforcing … environmental laws”.

On the other side of the scale, we can place the possibility that a former president, having previously been charged with subverting the peaceful succession of power, returns to the White House, where he demands the prosecution of all those who tried to hold him to account.

Or consider a related set of risks. On one side, the court imagines a president who is so fearful of the theoretical prospect of being prosecuted after leaving office that he fails to perform his duties in a “vigorous” and “energetic” manner. “Enfeebled” by the threat of future prosecution, the president is “chilled from taking the ‘bold and unhesitating action’ required of an independent Executive”.

On the other side, we can imagine that a former president, having already successfully dodged any legal reckoning for his attempt to subvert the results of fair democratic election, now finds himself back in the White House and, cloaked with a blanket of immunity for all his “official actions”, grossly abuses that power.

What are we........

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