Supreme Court: Trump enjoys some immunity for his official acts

More than two months after hearing oral arguments, the Supreme Court on Monday partially upheld former President Donald Trump’s claim that he is immune from criminal prosecution for acts he committed while in office. In a decision split 6-3 along ideological lines, the Supreme Court ruled that former presidents are largely immune from prosecution for official acts, but not for acts they committed while in office that are outside their job responsibilities. The decision will have significant implications for Trump’s remaining criminal cases and the future of the American presidency.

Under our system of separation of powers, the president cannot be sued for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts, according to the majority opinion written by Chief Justice John Roberts. That immunity applies equally to all occupants of the Oval Office.

The landmark decision marks the first time the Supreme Court has ruled on whether a president can be prosecuted for actions committed while in office. The decision does not drop the criminal charges against Trump, but it sends some elements of the federal election interference indictment back to a lower court to consider what conduct is protected and immune from prosecution.

“The President has no immunity for his unofficial acts, and not everything the President does is unofficial,” the decision reads.

The Supreme Court has provided specific guidance on the conduct at issue in special counsel Jack Smith’s criminal case 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 related to conversations with Justice Department officials about launching investigations into voter fraud and potentially fraudulent voter rolls. But the Supreme Court has not provided answers about 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 for his interactions with state officials, private citizens and voters about election fraud and the violence of January 6.

Sending those questions back to a lower court all but guarantees that Trump’s long-running federal trial in Washington will be delayed until voters decide in November whether to return Trump to the White House. Trump celebrated the Supreme Court’s decision Monday, calling it a major victory for the Constitution and democracy in a message posted to his social media. He also said it should put an end to his four criminal cases, including the one in New York for which he has already been convicted, though legal experts are skeptical of that claim.

The president has just been placed above the law for his official conduct, but there remains the question of accountability for unofficial acts, says Norm Eisen, a senior fellow in governance studies at the Brookings Institution and a former adviser to the Democratic-led House Judiciary Committee during Trump's first impeachment.

The Supreme Court’s three liberal justices dissented, with Justice Sonia Sotomayor writing in an impassioned opinion that the decision mocks the principle, fundamental 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 liability for criminal acts and treason and warned that the decision could have far-reaching ramifications by shielding presidents from a wide range of actions.

“The President of the United States is the most powerful person in the country, and perhaps in the world. When he uses his official powers in any way, the majority reasoned, he will now be immune from criminal prosecution,” Sotomayor wrote. “Orders Navy Seal Team 6 to assassinate a political rival? Immunized. Stages a military coup to hold on to power? Immunized. Accepts a bribe in exchange for a pardon? Immunized. Immunized, immune, immune.”

In a separate dissent, Justice Ketanji Brown Jackson said the decision breaks new ground and is dangerous by allowing future presidents to get a fair shot at immunity even if they admit to ordering the assassination of their political rivals or plotting a coup.

Roberts warned that the liberal members of the Supreme Court were engaging in “fear mongering,” saying it was not the role of the Supreme Court to sift through the evidence and decide what is and is not official conduct. He wrote that ultimately that analysis is best left to the lower courts in the first instance. The chief justice added that the dissenters are striking a tone of frightening pessimism that is completely out of proportion 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. District Judge Tanya Chutkan, who is overseeing the election interference case in Washington, D.C., 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 his private acts, 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 rejected Trump’s push to find enough votes to overturn the state’s 2020 vote.

Roberts pointed to Trump’s contacts with state officials, writing in the majority opinion that the president has “broad authority to speak on matters of public concern,” including the conduct of elections. But he also said the president has no role in certifying election results at the state level, adding that Chutkan would need to conduct a thorough analysis to determine whether those actions are protected.

Smith, who filed the lawsuit against Trump, wrote to the Supreme Court that even if it concludes that some level of immunity exists for official acts, a trial could still proceed by focusing on Trump’s private actions in the indictment. Trump’s use of official power was simply another means to achieve a private goal — perpetuating his office — that is prosecutable on the basis of private conduct, Smith told the Supreme Court. Trump’s own lawyer conceded during oral argument that some of the allegations in the indictment concern private conduct and would not be protected by the immunity defense.

Judge Chutkan had originally scheduled Trump’s trial in the Smith case to begin on March 4, but Trump’s appeal to the Supreme Court delayed the proceedings, paving the way for his New York business records case to go to trial first. Trump was convicted and sentenced on all 34 counts in that case and is scheduled to be sentenced on July 11. Trump also faces criminal cases in Florida and Georgia. If Trump is re-elected president, he could order the Justice Department to drop the federal charges against him.

During oral arguments, Trump’s lawyers argued that a former president enjoys absolute immunity from criminal prosecution for all official acts related to the presidency, saying he can only be criminally prosecuted if he is first impeached and convicted by Congress. The Supreme Court rejected that argument: “Turning the political process of impeachment into a necessary step toward enforcing the criminal law finds little support in the text of the Constitution or the structure of the nation’s government,” Roberts wrote. Trump’s lawyers argued that without blanket immunity, presidents could not function as commander in chief while worrying about potential criminal charges in the future. “Trump is claiming a far broader immunity than the limited one the Court recognizes,” Roberts added.

Lower courts have previously rejected that argument, including a unanimous three-judge panel of an appeals court in Washington, D.C. But Justice Samuel Alito noted during oral arguments that presidents are in a particularly precarious position given the high-stakes decisions they must make and the enormous power they wield. This case will have effects that go far beyond this particular prosecution, he said during oral arguments. Justices Brett Kavanaugh and Neil Gorsuch, two of Trump’s three Supreme 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, said the case that could be most impacted by the ruling, besides the Washington, D.C., case, is Fulton County, Georgia, where Trump and 14 of his allies were criminally charged in a sweeping racketeering indictment. The decision has potential implications for the Georgia case. [in that] He can claim he was merely auditing the Georgia election, but the ruling suggests there is no longer any wiggle room for state courts to judge whether he was acting in his presidential or personal capacity, she said. 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 president of the Defend Democracy Project, said it’s likely that once the courts finally determine whether Trump’s conduct in these cases is official or unofficial, they will decide that the vast majority of it is unofficial. If that holds, Monday’s landmark decision may not be the end of Trump’s criminal cases.

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