More than two months after hearing oral arguments, the Supreme Court on Monday partially backed former President Donald Trump’s claim that he is immune from criminal prosecution for actions he took while in office. In a 6-3 decision split along ideological lines, the Supreme Court ruled former Presidents are largely immune from prosecution for official acts, but not actions they took in office that aren’t part of their job responsibilities—a decision that will have significant consequences for Trump’s remaining criminal cases and the future of the American presidency.
“Under our system of separated powers, the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts,” the majority opinion written by Chief Justice John Roberts says. “That immunity applies equally to all occupants of the Oval Office.”
The landmark decision marks the first time the Supreme Court has weighed in on whether a president can be prosecuted for actions they took while in office. “The president enjoys no immunity for his unofficial acts, and not everything the President does is official,” the ruling continues. “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.”
The Supreme Court offered some specific guidance on the conduct at issue in the criminal case brought by special counsel Jack Smith against Trump over his alleged efforts to overturn the results of the 2020 election. Roberts wrote for the conservative majority that Trump is “absolutely immune” from prosecution for his alleged conduct relating to conversations with Justice Department officials about launching investigations into election fraud and potential fraudulent slates of electors. But the Supreme Court didn’t offer answers on other conduct alleged in Smith’s indictment, writing that further proceedings at the lower court level are needed to determine whether Trump can be prosecuted for his alleged attempt to pressure then-Vice President Mike Pence to reject the Electoral College vote, and his interactions with state officials, private people, and voters about election fraud and the violence on Jan. 6.
Sending these questions back to a lower court all but guarantees that Trump’s stalled federal trial in Washington, D.C will be delayed until after voters decide in November whether to return Trump to the White House.
“In every use of official power, the President is now a king above the law,” Justice Sonia Sotomayor wrote in the dissenting opinion, joined by the two other liberal Justices. “Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.”
Still, Roberts cautioned, “Trump asserts a far broader immunity than the limited one we have recognized.” The Chief Justice added: “As for the dissents, they strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today—conclude that immunity extends to official discussions between the President and his Attorney General, and then remand to the lower courts to determine ‘in the first instance’ whether and to what extent Trump’s remaining alleged conduct is entitled to immunity.”
During oral arguments, Trump’s attorneys argued that a former President has absolute immunity from criminal prosecution for all official acts related to the presidency, claiming that they could only be criminally prosecuted if first impeached and convicted by Congress. The Supreme Court rejected that argument: “Transforming the political process of impeachment into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of the Nation’s Government,” Roberts wrote. Trump’s attorneys claimed that without blanket immunity, Presidents would not be able to function as Commander in Chief while worrying about potential criminal charges in the future.
Lower courts had already rejected that argument, including a unanimous three-judge panel on an appeals court in Washington, D.C. But Justice Samuel Alito noted during oral arguments that Presidents are in a “peculiarly precarious position” given the high-stakes decisions they have to make and enormous amount of power they wield. “This case will have effects that go far beyond this particular prosecution,” he said at arguments. Justices Kavanaugh and Neil Gorsuch, two of Trump’s three high court appointees, both raised the specter of overzealous prosecutors targeting former Presidents after they leave office. “I’m not concerned about this case, but I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives,” Gorsuch said.
Smith, who brought the charges against Trump, wrote to the Supreme Court that even if it finds that some level of immunity exists for official acts, a trial could still get underway focused on Trump’s private actions in the indictment. Trump’s “use of official power was merely an additional means of achieving a private aim—to perpetuate his term in office—that is prosecutable based on private conduct,” Smith told the Supreme Court.
Originally, U.S. District Judge Tanya Chutkan had set Trump’s trial in the Smith case to begin on March 4, but Trump’s appeal to the Supreme Court resulted in a delay in the proceedings, paving the way for his New York business records case to be the first to reach trial. Trump was found guilty and convicted on all 34 counts in that case and is set to be sentenced on July 11. Trump is also facing criminal cases in Florida and Georgia. If Trump is elected President again, he could order the Justice Department to dismiss the federal charges against him.
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