Justices give presidents immunity for official acts, further delaying Trump’s trial
“The justices said unofficial acts have no immunity, sending Donald Trump’s Jan. 6 case back to the D.C. judge to decide which alleged acts are official.
Donald Trump is immune from prosecution for official acts as president but can face trial for private conduct, a divided Supreme Court ruled Monday, declaring a broad new definition of White House power that may stand for generations and will further delay Trump’s election interference case in D.C.
The 6-3 decision along ideological lines makes it highly unlikely that the 45th president will go to trial on charges of trying to subvert the 2020 election before voters cast ballots in this year’s presidential contest, in which Trump is the presumptive Republican nominee.
Due to court procedures and the particular way in which the decision was rendered, the lower court will probably not be able to resume work on the case for 32 days; when and if the trial does proceed, it may be with a significantly whittled-down set of evidence.
The high court specifically barred prosecutors from using one swath of evidence in any such trial — Trump’s conversations with Justice Department officials after Joe Biden’s 2020 election victory. The majority of the court also signaled that other significant parts of the prosecution case could be tossed out.
Joined the majority
Writing for the majority, Chief Justice John G. Roberts Jr. said a president “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.”
But, Roberts added, the president “enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law.” Roberts’s majority opinion was joined by all three justices nominated by Trump, in addition to Justices Clarence Thomas and Samuel A. Alito Jr.
The court’s three liberal justices forcefully dissented, with Justice Sonia Sotomayor saying the conservative majority “gives former President Trump all the immunity he asked for and more.” It was a noticeable contrast from past high-profile cases involving U.S. presidents, in which the high court has found consensus.
Sotomayor read from her dissent on the bench for nearly a half-hour on the final day of a momentous term that ended with sharply divided rulings. “In every use of official power, the President is now a king above the law,” Sotomayor wrote, joined by Justices Elena Kagan and Ketanji Brown Jackson. “With fear for our democracy, I dissent.”
Justice Amy Coney Barrett largely agreed with the majority’s definition of presidential immunity, but disagreed with their decision to bar prosecutors from presenting immunized official acts as trial evidence. “The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable,” she wrote in a separate concurrence.
Roberts said such evidence should not be allowed at trial because it would “permit a prosecutor to do indirectly what he cannot do directly — invite the jury to examine acts for which a President is immune from prosecution to nonetheless prove his liability on any charge.”
A Justice Department spokeswoman referred questions about the ruling to special counsel Jack Smith; a spokesman for Smith declined to comment.
In a call with reporters, Biden’s principal deputy campaign manager Quentin Fulks said the court “just handed Donald Trump the keys to the dictatorship. The Supreme Court just gave Trump a permission slip to assassinate and jail whoever he wants to gain power.”
Trump’s legal team celebrated.
“The federal government’s cases against Trump just got blown up because of this,” said David Gelman, an attorney who speaks for the former president on legal issues. “President Trump and all presidents after Trump should celebrate this ruling. … If a president is handcuffed, they are not going to be able to do their jobs in an effective way.”
The high court left it up to the D.C. trial judge, U.S. District Judge Tanya S. Chutkan, to determine which parts of Trump’s alleged conduct were unofficial acts by the then-president — a formula that seems likely to further narrow the scope of Smith’s case against Trump and add significant time and further appeals to the case.
But because Roberts did not send the case back to lower courts “forthwith,” as the special counsel had asked, Chutkan will have to wait until early August to begin those determinations.
Monday’s decision “creates more heat than light,” said former federal prosecutor Robert Mintz. “Rather than finding either clear immunity or no immunity for alleged criminal conduct, this new standard will unquestionably lead to protracted hearings and further appeals as the lower courts have to now grapple with the question of which allegations in the indictment constitute official acts.”
Trump became the first former U.S. president to be convicted of a crime in an unrelated New York case in May. He has tried to push his three remaining criminal trials until after the November election, raising the prospect that if he is reelected, he could press the Justice Department to drop the federal charges against him once he takes office.
The justices’ decision to hear Trump’s unprecedented immunity claims in the D.C. case — rather than let stand a unanimous appeals court decision that had denied immunity and greenlighted Trump’s prosecution — effectively halted all preparations for the federal trial, which originally was set to start March 4.
Trump has no trial currently scheduled. His Florida classified documents case is inching through pretrial proceedings, and his Georgia state election interference case is frozen pending an appeal related to the prosecutor’s alleged conduct outside of court.
The justices held oral argument about presidential immunity in late April, making it likely that a decision would come in the final days of the term. The timing was assailed by Trump’s critics, who say the American public deserved to know the outcome of the D.C. trial before voting for the next president.
In past cases of national importance implicating a president, the Supreme Court has tried to speak unanimously in its rulings and avoided breaking into conservative and liberal camps.
The justices were united in March, for example, when they rejected a Colorado decision that would have disqualified Trump from the ballot. Past courts ruled unanimously in cases involving a lawsuit against President Bill Clinton and President Richard M. Nixon’s tape recordings of conversations sought during the Watergate investigation.
But this ruling split sharply along ideological lines, with only the three justices appointed by Democrats dissenting.
The immunity decision was the “exact kind of case for the court to look like it’s playing more than partisan politics,” said Georgetown Law professor Steve Vladeck, who closely follows the work of the court. “Whether you agree with the bottom line or not, it’s impossible to look at the vote count as any kind of consensus statement.”
Trump is charged with four felonies connected to his alleged plan to stay in power after Biden’s 2020 victory: conspiring to defraud the United States, conspiring to obstruct the formal certification of Biden’s win in Congress on Jan. 6, 2021, obstructing a congressional proceeding, and conspiracy against rights — in this case, the right to vote.
Trump challenged the D.C. indictment, saying former presidents are immune from criminal prosecution, at least for actions related to their official duties, unless first impeached and convicted by Congress.
During oral argument, Trump’s lawyer, D. John Sauer, acknowledged that the former president could be prosecuted for private acts while in office — though he argued that most of Trump’s alleged conduct, including interactions with the Republican National Committee, constituted official acts.
Trump is accused of using false claims of massive voter fraud to pressure state officials, the Justice Department and then-Vice President Mike Pence to change the election results; scheming with others to submit to Congress slates of phony electors from swing states and to get lawmakers to toss out lawful ballots; and encouraging supporters to gather at the U.S. Capitol on Jan. 6, where a violent mob stopped the certification of Biden’s victory for many hours.
In general, Roberts said Monday that presidential immunity from prosecution is necessary to ensure an “energetic, independent executive” as designed by the framers and to avoid an executive branch that “cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next.”
The majority opinion said the government could overcome the presumption of immunity for a former president’s official acts if it can show that prosecuting the specific conduct does not intrude on “the authority and functions of the executive branch.”
Even though Trump’s attempt to pressure Pence, for instance, is “presumptively immune,” the court said prosecutors could argue that a charge related to the president’s communications with the vice president concerning the certification proceeding does not intrude on executive branch functions.
The Supreme Court’s decision followed a separate ruling last week that may complicate the special counsel’s case against Trump in other ways.
In the earlier ruling, the court said prosecutors overstepped in using an obstruction statute to charge one of the Jan. 6 defendants. That same statute is also the basis for two of the four charges Trump faces. In a footnote in Monday’s immunity decision, the majority directs the district court to determine whether the charges against Trump may proceed in light of its decision in the case known as Fischer v. U.S.
The majority was emphatic in its ruling Monday that Trump’s discussions with Justice Department officials after the 2020 election, trying to convince them to aggressively pursue his unfounded claims of election fraud, were shielded by presidential immunity.
“Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials,” the court ruled, adding that presidents are allowed to discuss investigations and prosecutions with Justice Department officials.
The high court found the line was less clear when it came to what Trump said publicly in the run-up to the Jan. 6 riot. Most of a president’s public statements “are likely to fall comfortably within the outer perimeter of his official responsibilities,” the ruling said, though there may be situations in which the president speaks unofficially, “perhaps as a candidate for office or party leader.”
The opinion also suggested that the indictment may have mischaracterized the overall tenor of Trump’s statements before the riot, saying it “includes only select Tweets and brief snippets of the speech Trump delivered on the morning of Jan. 6, omitting its full text or context.”
Knowing what else the then-president said, or who was involved in posting those statements and organizing the rally, “could be relevant to the classification of each communication,” the majority wrote.
There were not many cases from history for the justices to turn to for guidance to resolve the competing claims in Trump v. United States. Forty years ago, in a case involving Nixon, the Supreme Court said the Constitution shields presidents from private civil lawsuits for actions taken as part of their official duties — even those at the “outer perimeter” of their responsibilities.
That decision aimed to ensure that the threat of civil litigation did not distract from a president’s duties. But it did not address criminal liability.
After the D.C. Circuit ruling, written jointly by judges nominated by presidents of both parties, it took almost two weeks for the Supreme Court to announce in late February that it would review the immunity case. When they decided to take the case, the justices rephrased the question they would consider to address “whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
At oral argument, the conservative justices seemed focused on preserving presidential authority — concerned that the threat of investigation or prosecution could have a chilling effect on the ability of future presidents to act decisively.
Parts of Monday’s decision, however, seemed to describe a president with significantly more power and influence than recent presidents have exercised. Since the Nixon era, White House officials have generally sought to avoid intervening or becoming involved in criminal investigations and prosecutions overseen by the Justice Department. Monday’s ruling suggests that presidents need not be so circumspect.
Trump’s efforts after the 2020 election to get the Justice Department to investigate and promote false claims of large-scale vote tampering may have been improper, the majority wrote, but that does not “divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials.”
The president, the Supreme Court said, “may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials.”
Perry Stein, Spencer S. Hsu and Nicole Markus contributed to this report.“
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