Supreme Court gives Trump broad immunity from prosecution — for the past and perhaps future

The Supreme Court on Monday gave former — and perhaps future — President Trump a broad shield of immunity from criminal charges.

In a 6-3 vote, the justices upheld Trump’s claim that he cannot be prosecuted for official actions he took while in the White House.

The six conservatives ruled that presidents and ex-presidents enjoy absolute immunity for exercising their core constitutional powers, including acting as commander in chief of the armed forces, and presumed immunity for their official acts.

The three liberal justices dissented, characterizing the decision as a stark and dangerous expansion of presidential power that effectively places the nation’s chief executive above the law.

The decision left the door slightly open to holding Trump accountable for some of his alleged “private” efforts to overturn the results of the 2020 election. The court sent the case back to a district judge in Washington to consider whether any of Trump’s efforts to overturn President Biden’s victory were unofficial and therefore subject to prosecution.

While the case began as a challenge to the pending indictment involving Trump’s past conduct, the court’s explicit endorsement of presidential immunity may have a far greater impact in the years ahead, particularly if Trump returns to the White House.

“The president enjoys no immunity for his unofficial acts, and not everything the president does is official. The president is not above the law,” said Chief Justice John G. Roberts Jr. “But Congress may not criminalize the president’s conduct in carrying out the responsibilities of the executive branch under the Constitution. And the system of separated powers designed by the framers has always demanded an energetic, independent executive. The president therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.”

This outcome all but assures that Trump will not face a trial on the charges before the November election. And if he returns to office, he can order the Justice Department to dismiss the case.

The ruling would also extend a shield of immunity to Biden. Trump has declared that he would seek retribution if he returns to the White House, including by bringing criminal charges against those who have charged him. The court’s opinion makes clear that an ex-president cannot be prosecuted because of the actions of that administration’s Justice Department.

In dissent, Justice Sonia Sotomayor said, “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. … The court gives former President Trump all the immunity he asked for and more. Because our Constitution does not shield a former president from answering for criminal and treasonous acts, I dissent.”

Justices Elena Kagan and Ketanji Brown Jackson agreed.

Trump reacted on his social media network, posting: “BIG WIN FOR OUR CONSTITUTION AND DEMOCRACY. PROUD TO BE AN AMERICAN!”

Roberts was not entirely clear on what parts of the indictment against Trump may survive.

He said even Trump’s lawyers appeared to agree that a scheme to “submit fraudulent slates of presidential electors” was private and not part of the president’s official duties. But he said much would depend on the specifics of what Trump said or did.

“It is ultimately the government’s burden to rebut the presumption of immunity,” Roberts wrote. “We accordingly remand to the district court to determine in the first instance — with the benefit of briefing we lack — whether Trump’s conduct in this area qualifies as official or unofficial.”

Some legal scholars sharply criticized the ruling.

The “immunity decision will in time rank as among the court’s worst decisions in its many-year history,” said Claire Finkelstein, a University of Pennsylvania law professor. “Any U.S. president can now violate the law to remain in power as long as he cloaks it in the trappings of his office.”

The court’s partisan divide in the immunity ruling reminded some of the 2000 Bush vs. Gore decision that ended the vote recount in favor of President George W. Bush.

University of Chicago professor Alison L. LaCroix said the “court has created a new category of presumptive immunity that invites all future presidents to act first and worry about constitutional consequences later, if ever. Today’s decision is potentially even more sweeping than Bush vs. Gore because it applies to all future presidents, not only to one-off situations like the Florida recount in 2000. It also runs counter to the founders’ design. The founders’ greatest fear was a popular demagogue.”

Among the Democrats slamming the ruling was Rep. Adam B. Schiff (D-Burbank), a lead House prosecutor in one of the impeachments of Trump.

“Today’s Supreme Court decision on Donald Trump’s immunity claim is far worse than anything I imagined, effectively giving a president immunity for any crimes committed while in office, as long as that president can plausibly claim the action was taken in some form of official capacity,” Schiff said. “It must now be presumed that the president, as king, is immune from accountability. Under this ruling, a president can order the assassination or jailing of their political rival and be immune. … They can organize a military coup to hold onto power and still be immune. If that sounds mad, that’s because it is.”

During arguments in the case, Trump’s lawyers were asked if an ex-president could be prosecuted for ordering the military to “stage a coup” to keep him in office or instructing a Navy SEAL to kill a political rival. In response, the lawyer said that would appear to be an official action under the president’s power as commander in chief of the armed forces.

In his opinion, Roberts cited the president’s power over the military as coming within “the exclusive constitutional authority of the president.” He said the law “may not criminalize the president’s actions” in this area.

Jackson pointed to that passage as a concern.

“Even a hypothetical president who admits to having ordered the assassinations of his political rivals or critics, or one who indisputably instigates an unsuccessful coup, has a fair shot at getting immunity,” she said. “Regardless of the nature or the impact of the president’s criminal conduct, so long as he is committing crimes ‘pursuant to the powers invested exclusively in him by the Constitution,’ or as needed ‘to carry out his constitutional duties without undue caution,’ he is likely to be deemed immune from prosecution.”

At the start of the year, the Supreme Court faced three major issues involving Trump and the Jan. 6, 2021, riot at the Capitol. It has now ruled for Trump’s side on all three.

In March, the court ruled that Trump could not be removed from the ballot for having “engaged in insurrection,” in violation of the 14th Amendment.

Last week, it said his most fervent supporters could not be prosecuted under a financial accounting law for “obstructing” Congress as it met to certify Biden’s victory in the 2020 election.

And now the court has largely agreed with Trump’s immunity claim.

“This decision will give Donald Trump cover to do exactly what he’s been saying he wants to for months: enact revenge and retribution against his enemies,” said Quentin Fulks, deputy manager for the Biden-Harris campaign. “They just handed Donald Trump the keys to a dictatorship. The Supreme Court just gave Trump a permission slip to assassinate and jail whoever he wants to gain power.”

Before Monday, the Supreme Court had not ruled on whether a president or ex-president can be prosecuted for a crime.

The closest case came in July 1974, when a unanimous court rejected President Nixon’s claim of executive privilege and ordered him to turn over his White House tapes to investigators pursuing the Watergate scandal. The Justice Department had maintained that it would not bring charges against a president while in office. Government lawyers said the Constitution’s only remedy for law-breaking by a president is impeachment.

But it had long been assumed that a former president could be indicted for crimes, including for actions undertaken while in the White House.

Trump’s lawyers, however, argued that a former president was broadly shielded from prosecution for his “official acts.” They also raised the specter of a partisan prosecution, since Trump, the former chief executive and this year’s Republican nominee for president, is facing charges lodged by a Democratic administration whose president is running against him.

Atty. Gen. Merrick Garland appointed Jack Smith as a special counsel to investigate Trump’s role in the Jan. 6 attack on the Capitol. And last year, he indicted the former president on charges of conspiring to prevent the counting of electoral votes that confirmed Biden had won the election.

Trump called his supporters to come to Washington on Jan. 6, when Congress was meeting to certify Biden’s victory. He urged them to “stop the steal,” and thousands of them rioted and broke into the Capitol.

The special counsel hoped to bring the charges before a jury this spring, but Trump and his lawyers won several delays from the Supreme Court.

While Trump’s claim of absolute immunity was derided by legal experts, Smith and his lawyers took a similarly broad and unyielding position in the opposite direction. They said a former president has no immunity from criminal charges if a prosecutor won an indictment from a grand jury.

The special counsel’s position was accepted by U.S. District Judge Tanya Chutkan, the assigned trial judge, and upheld by a three-judge panel of the U.S. Court of Appeals in Washington.

However, it soon became clear that Smith’s position was not favored at the Supreme Court.

The justices refused in December and again in February to stand aside and allow Smith to bring his case before a jury.

Roberts and Justice Brett M. Kavanaugh previously worked as White House lawyers. Like Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch, they came up in the post-Watergate era of contentious and highly partisan investigations of presidents and their top advisors.

They were wary of giving prosecutors from the current administration full freedom to bring criminal charges against the previous president.

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