The Supreme Court on Monday finally ruled on Donald Trump’s presidential immunity claim, finding some of the former president’s alleged efforts to overturn the election are immune from criminal prosecution. The three Democratic appointees dissented, accusing the Republican-appointed majority of putting presidents above the law.
In the majority opinion by Chief Justice John Roberts, the court said former presidents are entitled to “absolute immunity” from criminal prosecution for actions within their “conclusive and preclusive” constitutional authority. Former presidents, Roberts wrote, are entitled to at least presumptive immunity from prosecution for all their official acts. There is no immunity for unofficial acts, the court said.
The court sent the case back to the trial court to determine whether some of Trump’s alleged conduct is official or unofficial, which will likely at least add further delay to the case, making it even more unlikely to go to trial before the November election.
More specifically, Roberts wrote:
Certain allegations — such as those involving Trump’s discussions with the Acting Attorney General — are readily categorized in light of the nature of the President’s official relationship to the office held by that individual. Other allegations — such as those involving Trump’s interactions with the Vice President, state officials, and certain private parties, and his comments to the general public — present more difficult questions. Although we identify several considerations pertinent to classifying those allegations and determining whether they are subject to immunity, that analysis ultimately is best left to the lower courts to perform in the first instance.
The majority said additional analysis is required because the lower courts that ruled against Trump “categorically rejected any form of Presidential immunity” and “did not analyze the conduct alleged in the indictment to decide which of it should be categorized as official and which unofficial.”
One of the specific questions U.S. District Judge Tanya Chutkan, who is presiding over the election interference case, will have to answer in the first instance is whether a prosecution involving Trump’s alleged attempts to influence the vice president’s oversight of the certification proceeding in his capacity as president of the Senate “would pose any dangers of intrusion on the authority and functions of the Executive Branch.” The majority made clear, however, that Trump is “absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.”
The court announced a tough burden for the government for the additional analysis that will take place, with Roberts instructing that courts examining official vs. unofficial conduct “may not inquire into the President’s motives.”
In dissent for the three Democratic appointees, Justice Sonia Sotomayor wrote that the decision “reshapes the institution of the Presidency” and “makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.”
Critiquing the majority’s exclusion of motive, she wrote that “any use of official power for any purpose, even the most corrupt purpose indicated by objective evidence of the most corrupt motives and intent, remains official and immune. Under the majority’s test, if it can be called a test, the category of Presidential action that can be deemed ‘unofficial’ is destined to be vanishingly small.”
In her own dissent, Justice Ketanji Brown Jackson wrote:
The majority of my colleagues seems to have put their trust in our Court’s ability to prevent Presidents from becoming Kings through case-by-case application of the indeterminate standards of their new Presidential accountability paradigm. I fear that they are wrong. But, for all our sakes, I hope that they are right. In the meantime, because the risks (and power) the Court has now assumed are intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms, I dissent.
The federal election interference case has been paused for months while the former president pressed his pretrial immunity bid. The case had been set to go to trial on March 4.
The Supreme Court prolonged the delay when it took up the appeal in February instead of letting a unanimous appellate ruling against Trump stand, which would have cleared the way for a timelier trial. And that was after the justices had rejected special counsel Jack Smith’s request for the court to resolve the immunity question at an earlier stage in December. The court further put a pre-election trial in doubt by setting the hearing for the very last argument day of the term, April 25, and then not ruling until now, at the very end of the term. By contrast, the high court’s ruling ensuring Trump’s place on the presidential ballot in the 14th Amendment case from Colorado took less than a month from argument to decide. Cleared by the justices to potentially take office again in January, a victorious Trump would likely use his presidential power to dismiss this case as well as his other federal prosecution, in the classified documents case. Justices Clarence Thomas and Samuel Alito participated in the appeal, despite the appearance of impropriety stemming from Thomas’ wife’s efforts to overturn the 2020 presidential election and Alito flying flags outside his homes that also were carried by Jan. 6 rioters. Alito blamed the flags on his wife and claimed they didn’t require his recusal, while Thomas hasn’t explained himself. Both Thomas and Alito fully joined Roberts’ opinion. The specific question at issue in the appeal, as crafted by the court, was: “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.” The April hearing revealed different views about that among the justices, with Republican appointees like Alito posing questions favorable to Trump. The hearing raised the prospect that, whatever the precise contours of the ruling, it could require even further litigation about how to implement it in Trump’s case before a trial can occur. Monday’s ruling follows Friday’s decision in Fischer v. United States, where the court narrowed the scope of obstruction charges against Jan. 6 defendants. Obstruction is one of the charges Trump faces in the federal election interference case, so his lawyers may try to use the Fischer decision to narrow the case against him. Whether they can successfully do so may turn on further litigation when the case goes back to the trial court. In Roberts’ opinion on Monday, he wrote, “If necessary, the District Court should determine in the first instance whether the Section 1512(c)(2) charges may proceed in light of our decision in Fischer.” Subscribe to the Deadline: Legal Newsletter for updates and expert analysis on the top legal stories. The newsletter will return to its regular weekly schedule when the Supreme Court’s next term kicks off in October.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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