Supreme Court: Trump Has 'Absolute Immunity' For Core Constitutional Powers
WASHINGTON — The U.S. Supreme Court has found that Donald Trump enjoys complete immunity for his coup-attempt-related presidential actions that were “official” in nature but not for those that were “unofficial,” in a ruling that effectively makes a trial on his Jan. 6, 2021, charges impossible before the November election.
Monday’s 6-3 decision, split down ideological lines, sends the question of deciding what is “official” and therefore immune from prosecution back to the lower courts, meaning that a “mini-trial” — featuring former high-level Trump aides testifying against him — is likely in the coming months.
But because Trump appears to be able to again appeal adverse rulings from those hearings, he could tie the four-count indictment up in court well into next year or beyond. Should he win back the White House, he would be able to order the Department of Justice to dismiss that case and an unrelated federal case against him.
The opinion, written by Chief Justice John Roberts and agreed to by the other five conservative justices, finds that Trump has immunity for conduct involving officials solely within his own administration but not necessarily for actions involving state officials and people not in government.
“First, with respect to any criminal conduct relating to a President’s ‘core constitutional powers’ — those subjects ‘within his “conclusive and preclusive” constitutional authority’ — the President is entitled to absolute immunity from criminal prosecution,” the opinion says.
It found he has no immunity at all for actions that are not “official.”
It sent the case back to U.S. District Court Judge Tanya Chutkan to determine which actions alleged in the indictment constitute “official” actions for which he has immunity to make sure prosecutors cannot use evidence obtained regarding that conduct. The lower court is ordered to review, among other things, “whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding [on Jan. 6] would pose any dangers of intrusion on the authority and functions of the Executive Branch.”
The Supreme Court also sent one part of the case — Trump’s pressure on state-level officials and campaign aides to create fraudulent slates of Electoral College electors in states he had, in fact, lost — back to the Washington, D.C., appeals court to determine whether that conduct was “official.”
This decision makes it less likely a trial will happen before the presidential election.
“The president enjoys no immunity for his unofficial acts, and not everything the President does is official,” the opinion says. “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.”
In a fiery dissent, Justice Sonia Sotomayor said the majority opinion “makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.”
Trump seemingly reacted to the opinion in a post on Truth Social Monday, writing, “Big win for our Constitution and democracy.”
The ruling appears to give presidents broad authority to use — or abuse — presidential power, especially when dealing with other executive branch officials.
“Trump’s threatened removal of the Acting Attorney General likewise implicates ‘conclusive and preclusive’ Presidential authority. As we have explained, the President’s power to remove ‘executive officers of the United States whom he has appointed’ may not be regulated by Congress or reviewed by the courts,” Roberts wrote. “Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.”
But because Trump’s pressuring of then-Vice President Mike Pence was regarding his role as president of the Senate, prosecutors could possibly show that Trump’s actions regarding Pence are not immune — though they would have to prove this in an evidentiary hearing.
“It is ultimately the Government’s burden to rebut the presumption of immunity. We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch,” Roberts wrote.
Roberts also argued that justices who dissented are being too alarmist about the consequences.
“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,” he wrote.
In his ruling, Roberts does appear to acknowledge the extraordinary nature of Trump’s conduct, but said a ruling narrowly tailored to just him would be a mistake.
“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,” Roberts wrote. “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.”
Trump faces four felony counts in the Jan. 6 indictment: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstructing an official proceeding, and conspiracy to deprive millions of Americans of the right to have their votes counted. If convicted, he could face decades in prison.
But if he is elected president again, he would control the Justice Department and could end the Jan. 6 case as well as a South Florida federal case based on his refusal to return secret documents that he took with him to his Palm Beach country club upon leaving office.
Trump is facing a separate Jan. 6-related state-level prosecution in Georgia for trying to overturn his election loss there. A trial on those racketeering and conspiracy charges could take place later this year.
Trump would have no authority as president to order the dismissal of those state-level charges.
And in New York, Trump was found guilty on 34 charges of falsifying business records to hide a $130,000 hush money payment to a porn star in the days leading up to the 2016 election. Trump said nothing he did in the scheme to bury the story was illegal.
