On May 18, The New Republic hosted it’s “Stop Trump Summit” in Philadelphia, gathering top thinkers and commentators to discuss what a second Trump term would mean for the state of democracy. CERL’s Professor Claire Finkelstein spoke on a Summit panel highlighting “The Weaponization of Government and the Threat of Authoritarianism.”

While Finkelstein believes the Supreme Court will eventually reach the correct decision, she expressed concern that the Court’s opinion might weaken the message by drawing an incorrect distinction between official capacity and non-official capacity acts, and suggest that there is immunity for crimes committed in an official capacity. As Finkelstein emphasized, however, “there is no such thing as immunity for official capacity crimes. If the commander in chief is allowed to issue illegal orders, it would sow chaos into the chain of command.”

Finkelstein also emphasized that the impact of this case is much larger than its verdict. “The future of our democracy rests with the question of immunity,” said Finkelstein. “And it’s not just the Supreme Court immunity case, it’s also de facto immunity in our system of government. If these trials fail it will mean that no president is ever held to the rule of law again.”

The country and the Biden administration need to reckon with the very real chance that Trump will become president again, and prepare appropriately, according to Finkelstein. This includes possibly imbuing special counsel with greater independence. “They need to get ready for the possibility that so many vulnerable points of our democracy will be used as a lever for authoritarianism.”

Claire Finkelstein is the Algernon Biddle Professor of Law and Professor of Philosophy and Faculty Director of the Center for Ethics and the Rule of Law. Read her bio here.   

The views expressed here are the author’s own and do not necessarily represent those of any organization or university.