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How the Supreme Court's Immunity Ruling Could Affect Trump's Criminal Cases

 


In her dissenting opinion on a Supreme Court opinion that granted broad immunity to former President Donald Trump, Justice Sonia Sotomayor pondered the potential consequences of the final judgment: A president could pocket a bribe for a pardon, stage a military coup to retain power, order the killing of a rival by the Navy’s SEAL Team Six and be shielded from prosecution for all of it.

These scenarios may seem like harbingers of an apocalyptic future. But the reality of the 6-3 decision is that it grants presidents broad freedom to perform their official duties without fear of criminal prosecution. It could embolden Trump, who has been impeached twice and faced four separate prosecutions in the past year and a half, as he considers a return to the White House.

The outcome is significant because Trump, the presumptive Republican nominee, has publicly expressed his desire to continue the same boundary-erasing conduct that defined his four years in office, prompted criminal and congressional investigations and raised new questions about the scope of presidential immunity that were resolved largely in his favor in Monday's historic opinion.

“In the long run, I think this will broaden the scope of what presidents can do because they will see that there is a gray area that the Supreme Court defines,” said Julian Zelizer, a professor of political history at Princeton University. “The effect of this opinion will be to broaden the scope of what is allowed and give presidents ample cover for actions that could veer into criminality,” he added.

The opinion, written by Chief Justice John Roberts, stopped short of dismissing the charge that Trump conspired to overturn the 2020 presidential race, as Trump had sought, and left intact the long-standing principle that there is no immunity for purely personal acts. But it sharply narrowed the scope of the case by finding that presidents enjoy absolute immunity for their core constitutional duties and are entitled to a presumption of immunity for other official acts.

This is a sweeping and dramatic endorsement of the unitary executive theory, said Michael Dorf, a law professor at Cornell University, referring to the theory that the U.S. Constitution gives the president sweeping control over the executive branch of government.

From a practical perspective, the court's opinion means that trial judge Tanya Chutkan must now conduct a more thorough analysis of the facts to determine the extent to which the conduct alleged in special counsel Jack Smith's indictment can remain on the record.

What is important for Trump is that the one area that the conservative majority declared was unquestionably off-limits to prosecutors was his command of and communications with the Justice Department.

That includes his directives to department leaders after the 2020 election to conduct what prosecutors called bogus investigations into false allegations of voter fraud, as well as his attempts to use the department's authority to advance his failed efforts to stay in power.

While the opinion does not create new law on the interaction between the White House and the Justice Department, Roberts asserted that a president has exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials and can also discuss potential investigations and prosecutions with his attorney general and other Justice Department officials to fulfill his constitutional duty to ensure that the laws are faithfully executed.

“I think this is a norm-breaking opinion, and I can imagine Trump using it as a basis for a complete destruction of the independence of the Justice Department,” said Kent Greenfield, a law professor at Boston College.

The move by the nation's highest court is welcome news for Trump, especially since he and his allies have suggested they want to use the power of the presidency, including, presumably, the Justice Department's investigative authority, to retaliate against his political enemies.

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