The Supreme Court declared on Monday that former presidents have immunity for their official actions, upending the case against Donald J. Trump over his attempts to subvert his 2020 election loss.
In the majority opinion, written by Chief Justice John G. Roberts Jr., the conservative supermajority explained that Congress has no authority to pass criminal laws regulating powers that the Constitution assigns exclusively to presidents. Where the two branches share overlapping authority, presidents may or may not have immunity depending on whether applying criminal law to those specific facts would dangerously intrude on the functions of the executive branch.
Justice Sonia Sotomayor, joined by her liberal colleagues, wrote a vehement dissent, portraying the ruling as a sharp expansion of presidential power — not just for Mr. Trump but for all presidents. She cited the famous World War II ruling that upheld the internment of Japanese Americans in the West to invoke the fear that presidents may feel freer to abuse their power.
At earlier stages of the Trump case, lower court judges had ruled that Mr. Trump had no immunity from prosecution over the allegations in the indictment regardless of whether the acts were official or unofficial. The Supreme Court sent the case back to the Federal District Court judge who would oversee any trial, Tanya S. Chutkan, to conduct that analysis. The majority, however, declared that Mr. Trump is clearly immune from prosecution for his alleged interactions with Justice Department officials in trying to enlist their help in overturning the 2020 election.
Even as Chief Justice Roberts wrote that a president talking to a vice president counted as an official act, he suggested that it might not qualify for immunity in the context of Mr. Trump’s pressure campaign on his vice president at the time, Mike Pence, to disrupt the certification of Electoral College votes. He noted that Congress has legislated extensively to define the vice president’s role in that task and that the president plays no direct part in it, suggesting that allowing a prosecution based on that act would not unduly impair executive branch functions. By contrast, the chief justice suggested that another context — a president talking to a vice president about casting a tiebreaking 51st vote in the Senate on legislation that is part of the White House’s agenda, for example — more likely would be immune. But he still left that issue to Judge Chutkan to consider.
During oral arguments, a Justice Department lawyer had suggested that even if the court were to rule that presidents are immune for official acts, prosecutors should still be able to introduce evidence about Mr. Trump’s official acts to help the jury understand the unofficial ones that would be the basis of charges. If so, a ruling that presidents have immunity for official actions would not have been particularly disruptive to the case prosecutors want to present to the jury. But in a major victory for Mr. Trump, Chief Justice Roberts’s opinion ruled out letting prosecutors use testimony or records about any official acts that are subject to immunity.
One of the court’s six conservatives, Justice Amy Coney Barrett, split from her colleagues on that issue. In a concurring opinion, she said she agreed with the three liberal judges in dissent that prosecutors should be allowed to use such evidence under certain circumstances. As an example, she pointed to a hypothetical bribery case, saying it would “hamstring the prosecution” not to be able to tell the jury about an official act that an ex-president had taken a bribe to perform.
In a footnote, Chief Justice Roberts addressed Justice Barrett, saying “of course” prosecutors could tell the jury that a president had taken an official act in a bribery case; they just could not present documents and testimony inviting the jury to scrutinize a president’s motivation and the legitimacy of that official action.
The five-justice majority’s declaration that official actions that are subject to presidential immunity cannot be used as evidence could matter for evidence about the inflammatory speech Mr. Trump delivered to his followers ahead of the Jan. 6 assault on the Capitol or any of his postings on Twitter leading up to the 2021 riot. It is established that speech that is protected by the First Amendment can be used as evidence about a defendant’s related crimes. But while leaving the first crack to Judge Chutkan, Chief Justice Roberts’s opinion raised the possibility that Mr. Trump’s words may count as official actions; and so would apparently be inadmissible at trial.
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