With its immunity ruling on Monday, the Supreme Court granted former President Donald Trump’s wish of all but guaranteeing that his criminal trial for trying to overturn the 2020 presidential election will not go to trial before the 2024 election in November.
It also granted presidents in general a definitive “absolute immunity” from prosecution for core official acts and said presidents should be presumed immune for a much more expansive list of acts.
In the view of the majority comprised of the six conservative justices on the court, the decision does not place presidents in general, and Trump in particular, above the law. But the three liberals dissented with a warning about how elevating a president will affect American democracy.
The decision has the near-term result of delaying Trump’s trial while a court in Washington, DC, considers which criminal activity that Trump is accused of can be considered “unofficial.” It also has the long-term effect of placing presidents in a different system of justice than other Americans.
Here are key lines (in italics) from a landmark ruling:
What is this new immunity?
Chief Justice John Roberts explains it in the majority opinion as including absolute immunity for some actions and a presumption of immunity for others.
We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity. At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient.
Why does a president need this immunity?
So that he can act boldly as president and take actions without fear of later prosecution clouding his judgement, according to the court. Here’s Roberts:
Potential criminal liability, and the peculiar public opprobrium that attaches to criminal proceedings, are plainly more likely to distort Presidential decisionmaking than the potential payment of civil damages.
The hesitation to execute the duties of his office fearlessly and fairly that might result when a President is making decisions under “a pall of potential prosecution,” … raises “unique risks to the effective functioning of government.”
What does it say in the Constitution about presidents getting special immunity?
Nothing. But that’s no problem, according to Roberts.
True, there is no “Presidential immunity clause” in the Constitution. But there is no “‘separation of powers clause’” either. … Yet that doctrine is undoubtedly carved into the Constitution’s text by its three articles separating powers and vesting the Executive power solely in the President.
How far does this immunity extend?
A president gets “at least a presumptive immunity” even for acts “within the outer perimeter of his official responsibility,” according to the court. But it’s careful to add that he gets no immunity for “unofficial acts” – and despite the broad reach of the immunity, the court argues presidents are still accountable.
The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution.
Are any of the things Trump is accused of in special counsel Jack Smith’s indictment outside this blanket of immunity?
During oral arguments in the case back in April, Trump’s attorney, John Sauer, told Justice Amy Coney Barrett that multiple elements of the indictment would indeed be “private,” or unofficial, acts. These include, for instance, getting an outside attorney to organize slates of false electors.
Barrett, in a concurring opinion on Monday, said she would make clear in the decision what was official versus unofficial. But the majority takes no position and wants the trial court to go through the allegations individually. Trump can then appeal whatever the trial court decides. Here’s Roberts:
… the current stage of the proceedings in this case does not require us to decide whether this immunity is presumptive or absolute. … Because we need not decide that question today, we do not decide it.
Does the majority tell the trial court what might be official or not?
The majority gives quite a bit of detail.
Trump has “absolute immunity” for any instructions or pressure he exerted on his acting attorney general, for instance. Plus, the court won’t allow as evidence any interviews with people who worked in the administration (nullifying much of the evidence gathered by the House select committee that investigated the January 6, 2021, events). And it also won’t let a court consider a president’s motives for taking an action.
Such an inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II interests that immunity seeks to protect.
It’s an open question for the lower court to decide if Trump’s pressure on then-Vice President Mike Pence to disregard the 2020 election results involved “official conduct,” but the Supreme Court put that pressure in the “presumptively immune” category.
We accordingly remand to the District Court to determine in the first instance—with the benefit of briefing we lack—whether Trump’s conduct in this area qualifies as official or unofficial.
The majority thinks Trump’s tweets encouraging people to go to the Capitol and pressure Pence are within the “outer perimeter of his official responsibilities,” but they’re not sure and they expect it will be challenging for the lower court to muddle through these questions.
Why can’t a jury make these decisions?
Juries can’t even consider official acts in terms of a prosecution, according to the Supreme Court.
Allowing prosecutors to ask or suggest that the jury probe official acts for which the President is immune would thus raise a unique risk that the jurors’ deliberations will be prejudiced by their views of the President’s policies and performance while in office. The prosaic tools on which the Government would have courts rely are an inadequate safeguard against the peculiar constitutional concerns implicated in the prosecution of a former President.
So the Supreme Court gave Trump everything he wanted?
It certainly embraced Trump’s theory of immunity and pretty much guaranteed the trial will not happen before the election, although the majority says they were restrained since they rejected his request to completely dismiss the case.
Trump asserts a far broader immunity than the limited one we have recognized. He contends that the indictment must be dismissed because the Impeachment Judgment Clause requires that impeachment and Senate conviction precede a President’s criminal prosecution.
So there is a special system of justice for presidents?
The president is more than a person, according to Roberts.
Like everyone else, the President is subject to prosecution in his unofficial capacity. But unlike anyone else, the President is a branch of government, and the Constitution vests in him sweeping powers and duties. Accounting for that reality—and ensuring that the President may exercise those powers forcefully, as the Framers anticipated he would—does not place him above the law; it preserves the basic structure of the Constitution from which that law derives.
The majority dismisses warnings about a president operating above the laws as “fear mongering on the basis of extreme hypotheticals.” It’s more important to protect the president from political prosecutions, the court says.
The dissents overlook the more likely prospect of an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next. … The enfeebling of the Presidency and our Government that would result from such a cycle of factional strife is exactly what the Framers intended to avoid.
Roberts borrows from Trump’s attorneys when he quotes George Washington’s farewell address, in which he warns about factions. The problem with that particular quote, as I found earlier this year, is that Washington also warned about elevating a person above the law.
Does the court mention the politics of today?
Roberts says the court’s considerations are more far-reaching than what’s happening at the moment.
This case poses a question of lasting significance: When may a former President be prosecuted for official acts taken during his Presidency? Our Nation has never before needed an answer. But in addressing that question today, unlike the political branches and the public at large, we cannot afford to fixate exclusively, or even primarily, on present exigencies. In a case like this one, focusing on “transient results” may have profound consequences for the separation of powers and for the future of our Republic.
Did it say anything about Smith?
The majority did not weigh in on the brewing argument among conservatives that Smith should not even have a job and that his role as a special counsel is unconstitutional. But Justice Clarence Thomas endorsed the idea in a concurring opinion.
In this case, there has been much discussion about ensuring that a President “is not above the law.” But, as the Court explains, the President’s immunity from prosecution for his official acts is the law. … In that same vein, the Constitution also secures liberty by separating the powers to create and fill offices. And, there are serious questions whether the Attorney General has violated that structure by creating an office of the Special Counsel that has not been established by law.
What did Barrett say about alternate electors?
Barrett, a Trump appointee, wrote her own concurrence in which she disagreed with the majority on some key points. She said they could easily have expressed that some of Trump’s conduct was unofficial.
Sorting private from official conduct sometimes will be difficult—but not always. Take the President’s alleged attempt to organize alternative slates of electors. … In my view, that conduct is private and therefore not entitled to protection. … a President has no legal authority—and thus no official capacity—to influence how the States appoint their electors. I see no plausible argument for barring prosecution of that alleged conduct.
What was in the blistering dissent?
Writing for the three liberals on the court, Justice Sonia Sotomayor blasted the majority as inventing an “atextual, ahistorical, and unjustifiable immunity that puts the President above the law.” She said the court makes it difficult to imagine what might be “unofficial” conduct on the part of the president.
In sum, the majority today endorses an expansive vision of Presidential immunity that was never recognized by the Founders, any sitting President, the Executive Branch, or even President Trump’s lawyers, until now. Settled understandings of the Constitution are of little use to the majority in this case, and so it ignores them. … In fact, the majority’s dividing line between “official” and “unofficial” conduct narrows the conduct considered “unofficial” almost to a nullity.
The majority “pays lip service” to the idea that presidents are not above the law “but it then proceeds to place former Presidents beyond the reach of the federal criminal laws for any abuse of official power.”
How far does Sotomayor say presidents can now go?
As far as they want, she says.
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.
… Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.
Sotomayor ends her missive like this:
Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop.
