The US Supreme Court ruled Monday that former President Donald Trump enjoys absolute immunity from prosecution for “official acts” during his presidency — without saying whether his alleged 2020 election subversion falls under that.
The nation’s top court instead left it up to the lower courts to sort out what constitutes an “official act” by a sitting president — and whether that applies in the 2020 election subversion case.
In a 6 to 3 decision authored by Chief Justice John Roberts, the panel stressed that the “president is not above the law,” and that “not everything the President does is official.” All three liberal justices dissented.
The high court’s ruling vacated an earlier decision by a lower court judge rejecting the immunity theory and cleared the way for more appeals by the former president that could set the trial schedule back months or years, if it ever happens.
“Like everyone else, the President is subject to prosecution in his unofficial capacity. But unlike anyone else, the President is a branch of government, and the Constitution vests in him sweeping powers and duties,” Roberts wrote in a lengthy 43-page decision.
“Accounting for that reality—and ensuring that the President may exercise those powers forcefully, as the Framers anticipated he would—does not place him above the law; it preserves the basic structure of the Constitution from which that law derives.
Roberts further stressed that “Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution.”
In remanding the matter back to the lower courts for further analysis, Roberts contended that “It is ultimately the Government’s burden to rebut the presumption of immunity.”
Justice Clarence Thomas concurred while Justice Amy Coney Barrett concurred in part, calling for a more limited version of immunity.
“The President has no authority over state legislatures or their leadership, so it is hard to see how prosecuting him for crimes committed when dealing with the Arizona House Speaker would unconstitutionally intrude on executive power,” she wrote.
Justice Sonia Sotomayor penned the dissent and was joined by Justices Elana Kagan and Ketanji Brown Jackson.
“Our Constitution does not shield a former President from answering for criminal and treasonous acts,” she wrote in a blistering dissent.
“Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law,” she added. “With fear for our democracy, I dissent.”
Jackson penned another dissent in which she took aim at the distinction between official and unofficial acts that the majority opinion laid out.
“The official-versus-unofficial act distinction also seems both arbitrary and irrational, for it suggests that the unofficial criminal acts of a President are the only ones worthy of prosecution,” she wrote.
“Quite to the contrary, it is when the President commits crimes using his unparalleled official powers that the risks of abuse and autocracy will be most dire.”
Lawyers for Trump, 78, who appointed three of the nine justices on the Supreme Court, unfurled a legal theory of sweeping protection from prosecution for any acts undertaken while in office in a bid to quash the four-count case against the former president.
The 45th president is accused of criminally attempting “to defraud the United States by using dishonesty, fraud and deceit” to obstruct the electoral vote process, “impede the January 6 congressional proceeding at which the collected results of the presidential election are counted and certified” and working “against the right to vote and to have that vote counted.”
The former president’s camp claimed his efforts were “official acts” protected by his office, but special counsel Jack Smith argued they are still subject to criminal prosecution.
Last week, the Supreme Court handed down a decision that narrowed the use of an obstruction charge in the case, but prosecutors have conveyed confidence that the decision won’t thwart the main thrust of their case.
Presiding US District Judge Tanya Chutkan rejected Trump’s “immunity” theory last year in a decision that was later upheld by the DC Circuit Court of Appeals in February.
Chutkan put proceedings in the case on hold pending the Supreme Court appeal.
During one eye-catching exchange in the circuit court, Judge Florence Pan posed a hypothetical scenario featuring “a president who ordered SEAL Team 6 to assassinate a political rival (and is) not impeached” and asked, “Would he be subject to criminal prosecution?”
Trump lawyer John Sauer answered that a president would have to be impeached and convicted first. He claimed that immunity applied to presidential but not personal conduct.
Sauer claimed that such immunity was covered by the Constitution and Executive Vesting Clause, which bestows the president with executive power.
Initially, many legal experts posited that Smith’s position against absolute immunity was a slam dunk and anticipated the Supreme Court would spurn Trump’s plea for a get-out-of-jail-free card.
But during oral arguments before the top court in April, it was clear that its conservative majority was agonizing over the question, seemingly hunting for some sort of middle ground and insinuating that the lower courts didn’t do enough due diligence on it.
Arguments from both sides lasted about two hours and 40 minutes, notably longer than usual. The conservative justices fretted that tossing out Trump’s immunity case carte blanche could pave the way for politically laced tit-for-tat prosecutions against presidents down the road.
“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,” Justice Neil Gorsuch stressed at one point.
“We’re writing a rule for the ages.”
The justices mused that most prosecutors are easily able to get a grand jury to hand down indictments and fretted that an absence of any presidential immunity could be destabilizing because chief executives would become prime targets for such tactics.
In the run-up to the top court’s decision, President Biden stayed largely mum but said he “can’t think of one” reason why presidents should have total immunity from prosecution.
Trump didn’t need to win
Trump only needed to delay the case because of the upcoming election — and he succeeded.
If he wins a second term Nov. 5, he could theoretically tell the Justice Department to unravel the federal cases against him.
Another possibility — although an untested one — is that Trump could attempt to pardon himself.
“We’ve never answered whether a president can do that,” Gorsuch mused during oral arguments. “Happily, it’s never been presented to us.”
In addition to the 2020 election subversion case, Smith is prosecuting Trump in the 40-count Mar-a-Lago document case, in which he is accused of illegally hoarding troves of classified papers after leaving the White House.
Trump is also facing a 10-count racketeering indictment for 2020 election tampering in Georgia, bringing his total pending charges up to 54. He has denied wrongdoing and pleaded not guilty to all of them.
Thus far, none of those three cases have trial start dates. Trump is waging a separate effort to derail the Georgia case.
Trump was already found guilty in May on 34 counts in his Manhattan hush-money case and is set to face sentencing on July 11 — just days before the Republican National Convention.
SCOTUS finishes up its term
Monday marks a rare foray into July for the Supreme Court in recent years, as it typically wraps up its term by the end of June.
But its term had proven to be jammed-packed with politically fraught and consequential cases, including those involving abortion, firearms, unions, Big Tech censorship, redistricting, Chevron Deference and more.
Earlier this year, Sotomayor complained about the grueling schedule. She is facing pressure from some progressives to step down while Dems still have political power to replace her.
“Cases are bigger. They’re more demanding. The number of amici are greater, and you know that our emergency calendar is so much more active. I’m tired,” she said, according to Bloomberg Law.
“There used to be a time when we had a good chunk of the summer break. Not anymore. The emergency calendar is busy almost on a weekly basis.”
At the moment, the high court has just shy of two dozen cases on its list for the next term, which is due to begin Oct. 7. One of them is a high-profile challenge against a Tennessee law on transgenderism.
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