In a decision everyone could have seen coming, the Supreme Court has now ruled that former president Trump, and future presidents, enjoy broad immunity from criminal prosecution provided that their actions could fairly, even arguably, be considered “official acts.”
Although cloaked in the language of a relatively narrow procedural ruling, one that sends the case back to the district court for further proceedings, it is hard to see this as anything other than raw politics, a thumb on the political scale for a candidate for the most important elected office in the nation from the highest and most powerful court in the land.
The Court has remanded the matter back to the district court to sort through the allegations contained in the criminal charges to determine which of those allegations are “official acts” and which are not. The trial judge must now make findings as to which allegations fall within this new, sweeping immunity and which are outside of it. And none of that has anything to do with the former president’s guilt or innocence with respect to any of these charges.
What is more, such proceedings could take months, at a minimum, and would certainly be appealed once again. As a result, the Court has effectively ended any hope that the former president will stand trial for the effort to overturn the results of the 2020 election in time for voters to have information as to his guilt or innocence for those charges before the 2024 election.
But delay was the name of the game for the Court in this case. Last December, when the Colorado Supreme Court ruled that the former president could not appear on the ballot in the 2024 election under the Insurrection Clause of the 14th Amendment to the Constitution, the Court acted swiftly, granting oral argument in a matter of weeks and issuing a decision less than one month after that.
In this case, the Court was asked by special prosecutor Jack Smith to take the appeal directly from the district court’s order, putting it on a similarly fast track, and which it does in cases of high importance such as this. It declined to do so.
Instead, it allowed the federal appeals court for the District of Columbia to issue its ruling, which it did quickly. On Feb. 6, 2024, that court affirmed the lower court’s finding that the former president was not immune from prosecution. Once that decision was appealed, instead of hearing oral argument on an accelerated schedule similar to how it heard the Colorado case, such argument was scheduled six weeks later.
Nearly five months after the appellate court reached its ruling, on the last day of the term, the Court issued today’s ruling. In other words, the Court took nearly twice as long to consider the Trump immunity claim than it did on his ballot access claim. In one case, speed favored the former president; in the other, delay did. The Court obliged in both instances.
There was another path. It could have considered this case along the same sort of fast track on which it ruled on the Colorado case. What is more, as Justice Sotomayor pointed out her dissent that, at oral argument, Trump’s lawyer made a number of damning concessions that a range of the president’s alleged actions were clearly outside of the former president’s official acts.
“The relationship between the President and the people he serves has shifted irrevocably,” Sotomayor wrote in her dissent. “In every use of official power, the President is now a king above the law.”
The Court could have made it clear that there are allegations that are outside the scope of the president’s official acts, and the immunity claim is unavailing with respect to at least those claims. Nevertheless, the Court’s conservative majority ruled that all of the allegations must be reviewed by the district court, effectively ending any hope that the former president will face a trial on the merits for the events of Jan. 6 and related actions.
The Court did not outright say the president can shoot someone on Fifth Avenue and get away with it, or order a political rival assassinated or jailed. But if one might argue that such actions fell within a president’s official acts, like if he or she ordered the Vice President to do it, the president might just be immune from prosecution for doing so.
Instead of explicitly granting a president such authority, it did something nearly as troubling, especially in the context of an upcoming election. The majority throws up its hands and says it is in no position to review the facts of a coup attempt that unfolded in real time, on television.
“It’s not just the substance and scope of the ruling, but the manner in which they got to it, that should cause all Americans great pause.”
In a term when the conservative majority on the Court has second-guessed prosecutors, the entire administrative state, and basically anyone but themselves, it now suddenly finds some humility. Even when a litigant makes damning admissions, the majority found that it could not possibly assess the allegations as to whether they could fairly be construed as official or unofficial acts.
It’s not just the substance and scope of the ruling, but the manner in which they got to it, that should cause all Americans great pause. In an effort to appear even handed, many will see this as another example of the Court picking sides—and the fruition of Trump’s mission, when he was president and had the power to do so, to stack the court with conservative nominees to rubber-stamp his agenda.
The American people have historically placed great trust in the Court as an institution. Such trust has steadily eroded in recent years, hitting its lowest point after its decision in Dobbs v. Jackson Women’s Health Organization which overturned Roe v. Wade. Today’s decision is likely to reduce that trust even further.
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