Welcome back, Deadline: Legal Newsletter readers. We’re here with a special edition to cap off this historic Supreme Court term, which ended with the court finally ruling on Donald Trump’s immunity claim. Writing for the Republican appointees in the majority, Chief Justice John Roberts weakened the federal election interference case against Trump and all but guaranteed that it won’t go to trial before the defendant has a chance to win the presidency in November and crush the case himself.
“The President is not above the law,” Roberts wrote Monday. But the majority gave former presidents like Trump special protections not afforded to regular criminal defendants. The GOP appointees said the presumptive GOP presidential nominee is “absolutely immune from prosecution” for alleged conduct involving his contacts with Justice Department officials. They sent the case back to the trial court to analyze, under the court’s newly devised test, whether certain alleged conduct qualifies as “official” or “unofficial.”
The ruling “makes a mockery” of the foundational principle that “no man is above the law,” Justice Sonia Sotomayor wrote in dissent for the three Democratic appointees. “Under the majority’s test, if it can be called a test,” she wrote, “the category of Presidential action that can be deemed ‘unofficial’ is destined to be vanishingly small.” In her dissent, Justice Ketanji Brown Jackson wrote that “the risks (and power) the Court has now assumed are intolerable, unwarranted, and antithetical to bedrock constitutional norms.”
Monday’s ruling in Trump v. United States follows Friday’s 6-3 ruling in Fischer v. United States. Notably in Fischer, Jackson joined the otherwise GOP-appointed majority while Justice Amy Coney Barrett wrote the dissent, joined by Sotomayor and Justice Elena Kagan. The majority narrowed the scope of an obstruction law used against Jan. 6 defendants, including Trump himself. That law appears in two of the four counts in his Washington indictment. Fischer might not derail those charges, but the new obstruction standard may prompt more litigation in the trial court to determine its impact, if any, on Trump’s case.
Coupled with Monday’s immunity ruling, the question now is not only whether the federal election interference case ever goes to trial but how much of special counsel Jack Smith’s indictment against Trump for alleged 2020 election subversion will be left standing by the time it reaches any jury.
Though the immunity case is huge, it’s far from the only crucial decision this term. After all, given that Trump is poised to eliminate both of his federal prosecutions if he returns to the White House, it’s worth remembering that his latest run was made possible partly because the court allowed it, despite the Jan. 6 insurrection, in Trump v. Anderson earlier this year. Even without the cases involving or affecting the serially indicted, once (so far) convicted, presumptive GOP nominee, it’s been a significant term. The Roberts Court grabbed more power from federal agencies, made racial gerrymandering even more challenging to prove, unleashed deadly bump stocks, criminalized homelessness, greenlit experimental executions and more. The justices also turned away two abortion-related appeals while leaving the fate of reproductive rights in doubt at the court that overturned Roe v. Wade two years ago. The court continued to make news off the bench, too. The justices adopted a nonbinding ethics code as more scrutiny mounted on Justices Clarence Thomas and Samuel Alito, who should’ve recused themselves from Jan. 6-related cases; Thomas didn’t bother to explain himself and Alito’s explanation didn’t pass the laugh test. Both justices were in the majority in the Trump and Fischer cases, siding with Jan. 6 defendants. So, what’s on tap for next term? The court’s docket is still filling out, but a case involving transgender rights is among the ones we’ll be watching. The newsletter will be on hiatus until the court kicks off the next term in October, but you may hear from us over the summer. In the meantime, catch the latest on MSNBC.com and the Deadline: Legal Blog.
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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