Supreme Court Rules Former Presidents Have Some Immunity for Official Acts

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 decision doesn’t dismiss the criminal cases against Trump, but sends certain elements of the federal election interference  indictment back to a lower court to review which conduct is protected and immune from prosecution.

"The President enjoys no immunity for his unofficial acts, and not everything the President does is official,” the ruling reads.

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. Trump celebrated the Supreme Court ruling on Monday, calling it a “big win for the Constitution and democracy” in a post on his social media. He also claimed that it should put an end to all four of his criminal cases, including the New York case for which he was already convicted, though legal experts are skeptical of that assertion.

“The President has just been placed above the law for his official conduct, but there remains the question of liability for unofficial acts,” says Norm Eisen, a senior fellow in governance studies at The Brookings Institution and former counsel to the Democrat-led House Judiciary Committee during Trump’s first impeachment.

The court’s three liberal Justices dissented, with Justice Sonia Sotomayor writing in an impassioned opinion that the ruling “makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.” She added that the Constitution “does not shield a former president from answering for criminal and treasonous acts” and warned that the ruling could have broad ramifications by protecting Presidents for a wide range of actions.

"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," Sotomayor wrote. "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."

In a separate dissenting opinion, Justice Ketanji Brown Jackson said the ruling “breaks new and dangerous ground” by allowing future Presidents to get a “fair shot” at immunity even if they admit to having ordered the assassinations of his political rivals or instigates a coup.

Roberts cautioned that the liberal members of the Court were engaging in "fear mongering," claiming that it was not the Supreme Court’s job to sift through the evidence and decide what is and isn’t official conduct. “That analysis,” he wrote, “ultimately is best left to the lower courts to perform in the first instance.” The Chief Justice added that the dissenters “strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today” and that "like everyone else, the President is subject to prosecution in his unofficial capacity."

It remains to be seen what the immunity ruling means for Trump’s criminal cases. U.S. District Judge Tanya Chutkan, who is overseeing the election interference case in Washington, D.C. case and was appointed by former President Barack Obama, must now sift through the allegations in the indictment to separate Trump’s official acts as President from private ones, when he was acting as a presidential candidate. Those acts include conversations Trump had with people outside the federal government, including Georgia Secretary of State Brad Raffensperger, who famously rejected Trump’s pressure to “find” enough votes to flip the state’s 2020 vote.

Roberts addressed Trump’s contacts with state officials, writing in the majority opinion that the President has "broad power to speak on matters of public concern" including the conduct of elections. But he also said that the president “plays no role” in certifying state election results, adding that Chutkan will need to conduct a “close analysis” to determine if those actions are protected.

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. Trump’s own lawyer conceded in the oral argument that some of the allegations in the indictment concern private conduct and would not be protected by the immunity defense.

Originally, 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.

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. "Trump asserts a far broader immunity than the limited one the Court recognizes,” Roberts added.

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 Brett 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.

Claire Finkelstein, a law professor at the University of Pennsylvania, says that the case that could be most significantly impacted by the ruling—besides the Washington, D.C. case—is the one in Fulton County, Ga., where Trump and 14 of his allies have been criminally charged in a sprawling racketeering indictment. “This ruling has implications potentially for the Georgia case [in that] he can claim that he was just checking up on the Georgia elections… the ruling suggests that there's no room left over for state courts to exercise judgment around whether or not he was in fact acting in his presidential or personal capacity,” she says. Trump could not drop the charges or pardon himself in the Georgia case, which involves state crimes.

Mike Podhorzer, a senior fellow at the Center for American Progress and chair of the Defend Democracy Project, says that he believes “it’s quite likely that once the courts get to finally resolve whether Trump's conduct in these cases is official or unofficial, it will decide that the vast majority of it is unofficial.” If that bears out, Monday’s historic ruling may not mark the end of Trump’s criminal cases.

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