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Presidential immunity covers some official acts, Supreme Court rules in Trump case


Presidential immunity covers some official acts, Supreme Court rules in Trump case

Jul 01, 2024 | 6:12 pm ET
By Ashley Murray Jacob Fischler
Presidential immunity covers some official acts, Supreme Court rules in Trump case
Former President Donald Trump speaks to the media in this April 18 file photo as he leaves Manhattan Criminal Court in New York City. Photo by Brendan McDermid-Pool/Getty Images

WASHINGTON — U.S. presidents enjoy full immunity from criminal charges for their official “core constitutional” acts, but no immunity for unofficial acts, the Supreme Court ruled Monday, sending former President Donald Trump’s election interference case back to the lower courts.

The justices left open the question of how far the boundaries of such official acts reach, possibly reshaping the contours of the American presidency.

The landmark decision by the court’s conservatives — the last of the Supreme Court term — was met with intense dismay from Democrats and allies, who described it as a setback for democracy that undermined the Constitution by putting the former president above the law.

Former Capitol Police Officer Harry Dunn, a Maryland resident who was in the Capitol on Jan. 6, said Trump was responsible for the attack that day. The court’s ruling has empowered the former president, he said.

“Donald Trump is still the single greatest threat to our democracy,” Dunn said on a press call organized by the Biden-Harris campaign. “I don’t need nine Supreme Court justices to tell me that Donald Trump was responsible for Jan. 6. I was there. Those people that attacked us, they attacked us in his name.”

Trump and his allies said the ruling repudiated the prosecutions against him, which he has criticized as politically motivated. “Today’s ruling by the Court is a victory for former President Trump and all future presidents, and another defeat for President Biden’s weaponized Department of Justice and Jack Smith,” U.S. House Speaker Mike Johnson (R-La.) said in a statement.

Trump escalated his immunity claim to the nation’s highest bench after two lower courts denied his request for protection from federal criminal charges alleging he schemed to overturn the 2020 presidential results.

A federal indictment in August 2023 alleged Trump knowingly spread falsehoods to his supporters, plotting with co-conspirators to overturn results in seven states and eventually working his base into a frenzy that culminated in a violent attack on the U.S. Capitol on Jan. 6, 2021, the day Congress was to certify electoral votes.

The Supreme Court’s timing of its decision likely closes the door to any chance that Trump’s election subversion case could go to trial before Election Day. The justices took up the case in February but did not hear oral arguments until April 25.

The trial court, under U.S. District Court Judge Tanya Chutkan, must now grapple with whether Trump’s alleged conduct to spread false information about the 2020 election results and conspiring to overturn them qualified as official presidential action.

It is unclear how or whether such proceedings would go forward if Trump, who is already a convicted felon in New York, wins a second term.

Maryland Democrats quickly attacked the ruling, with Sen. Ben Cardin saying the justices, instead of settling Trump’s “case clearly and coherently, they punted to run out the clock.”

“The conservative majority of the Court declared that a president has absolutely immunity from prosecution for official acts but not for unofficial acts,” Cardin said in a statement released by his office. “Yet, they could not declare that inciting an insurrection against the government and encouraging an attack on the U.S. Capitol were not official acts…. Encouraging and inciting an insurrection are not ‘core constitutional’ duties.”

Rep. Steny Hoyer (D-5th) called the ruling a “radical decision” that “undermines that basic proposition of our democracy.”

“It is an opinion that no matter how dangerous or heinous a president’s actions may be in executing his ‘official duties,’ he cannot be held accountable for them. That is absolutely not what our country and our democracy are about,” Hoyer said in a prepared statement.

‘Sweeping powers and duties’

In the 6-3 opinion, Chief Justice John G. Roberts Jr. wrote that the president is subject to criminal prosecution for unofficial acts “like everyone else.”

“But unlike anyone else, the President is a branch of government, and the Constitution vests in him sweeping powers and duties,” Roberts wrote. “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.”

In a dissenting opinion, Justice Sonia Sotomayor wrote that the decision fundamentally alters the presidency and mocks the principle that no one is above the law.

The majority relied on “little more than its own misguided wisdom” that presidents need to be able to take decisive and quick action, to give Trump “all the immunity he asked for and more.”

“Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent,” she wrote.

Trump, the Republican Party’s presumptive nominee for the 2024 presidential election, declared the high court’s decision a victory. “BIG WIN FOR OUR CONSTITUTION AND DEMOCRACY. PROUD TO BE AN AMERICAN!” he wrote on his Truth Social platform immediately after the opinion’s release.

A top Democrat in Congress, Senate Majority Leader Chuck Schumer of New York, said Monday was a “sad day for our democracy.”

“This disgraceful decision by the MAGA Supreme Court — which is comprised of three justices appointed by Mr. Trump himself — enables the former President to weaken our democracy by breaking the law,” Schumer said in a statement following the opinion. “This decision undermines the credibility of the Supreme Court, and suggests that political influence trumps all in our courts today.”

DOJ communications immune

Roberts’ majority opinion held that Trump’s conversations with Justice Department officials regarding the election results are immune to prosecution, but left unanswered questions about other conduct named in the indictment of Trump by Smith, the Department of Justice special counsel.

The indictment accuses Trump of leveraging the power of the Justice Department to pressure states to replace legitimate electors with false ones as a way to clinch the presidency. Trump threatened to fire those who did not cooperate, according to the indictment.

“​​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,” the opinion reads. “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.”

Roberts blamed the “expedition of the case” and “the lack of factual analysis by the lower courts” for leaving open what the court described as complex questions.

A federal grand jury indicted Trump on four counts Aug. 1, 2023, but the former president effectively halted all proceedings in October when he moved to dismiss the case based on presidential immunity. The justices, in December, refused a request by Smith to expedite the question of presidential immunity.

While Trump’s communications with the Justice Department are deemed official, the justices returned to the lower court the question of whether Trump’s alleged pressure campaign of Vice President Mike Pence leading up to Jan. 6 falls under the president’s scope of constitutional duties.

Trump is “at least presumptively immune from prosecution” for the conversations with his vice president, Roberts wrote.

But the opinion also highlights that the vice president simultaneously serves as the president of the Senate, taking some of his or her duties — including the certification of election results — outside the executive branch.

“It is ultimately the Government’s burden to rebut the presumption of immunity,” Roberts wrote. “We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, 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.”

Trump and the fake electors

Whether Trump’s communication with election officials in Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania and Wisconsin about false slates of electors qualifies as official presidential conduct must also be decided by the lower courts.

The federal indictment alleges Trump worked with co-conspirators in the seven states “to marshal individuals who would have served as [Trump’s] electors, had he won the popular vote” and submit the false outcomes to Pence and Congress.

During oral arguments in April, Trump attorney D. John Sauer asserted that it is “[a]bsolutely an official act for the president to communicate with state officials on . . . the integrity of a federal election.” The government argued the discussions amounted to a “private scheme with private actors.”

On this debate, Roberts, citing the Constitution, wrote in Monday’s opinion that “Of course, the President’s duty to ‘take Care that the Laws be faithfully executed’ plainly encompasses enforcement of federal election laws passed by Congress.”

“And the President’s broad power to speak on matters of public concern does not exclude his public communications regarding the fairness and integrity of federal elections simply because he is running for re-election,” Roberts continued.

The answer to whether those discussions and alleged plans were official or unofficial will require “a close analysis of the indictment’s extensive and interrelated allegations” by the lower court, Roberts concluded.

Similarly, the justices returned to the lower courts any determination of whether Trump’s tweets, White House Ellipse speech to rallygoers and Rose Garden address to rioters on Jan. 6, 2021, were official or unofficial.

“(M)ost of a President’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities,” Roberts wrote. “There may, however, be contexts in which the President, notwithstanding the prominence of his position, speaks in an unofficial capacity—perhaps as a candidate for office or party leader.”

He urged the trial court to conduct a “factbound analysis” of who was involved in communications leading up to Jan. 6 and “what else was said contemporaneous to the excerpted communications” quoted in the indictment.

‘With fear for our democracy’

In a scathing dissent, Sotomayor, writing for the court’s three-member liberal wing that also includes Justices Elena Kagan and Ketanji Brown Jackson, said the majority opinion “invents an atextual, ahistorical, and unjustifiable immunity that puts the President above the law.”

The court did not need to declare a president’s core constitutional duties — which were not at issue in the indictment — as immune from prosecution, Sotomayor wrote. Including a discussion of core constitutional duties seemed to expand their definition, she said.

But more important, she said, was the majority’s finding of presumed immunity for all official acts, which greatly expands a president’s power to commit misdeeds with impunity.

“Whether described as presumptive or absolute, under the majority’s rule, a President’s use of any official power for any purpose, even the most corrupt, is immune from prosecution,” Sotomayor wrote. “That is just as bad as it sounds, and it is baseless.”

The majority’s view that prosecutors cannot even use a president’s official acts as evidence in a prosecution of the president for private offenses was “nonsensical,” she added.

The ruling makes the president “immune from criminal prosecution if he used the trappings of his office to violate the criminal law,” Sotomayor said.

“If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop,” she wrote.

“With fear for our democracy, I dissent.”

Jackson dissent

In a separate dissent, Jackson said she fully endorsed Sotomayor’s view, and expanded on the “theoretical nuts and bolts” of what the decision would mean.

“Being immune is not like having a defense under the law,” Jackson wrote. “Rather, it means that the law does not apply to the immunized person in the first place.”

In the majority opinion, Roberts said the dissenters overreacted to the ruling.

The dissents “strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today,” Roberts said.

The majority only ruled that Trump’s conversations with Justice Department officials were immune from prosecution and left to lower courts to determine other questions, Roberts wrote.

Barrett argues for narrower immunity

In a concurring opinion, Justice Amy Coney Barrett, the most recent of three justices appointed by Trump, agreed with the bulk of the majority’s opinion. But Barrett argued at least part of the allegations against Trump were valid and said the justices should have explicitly said so, rather than leaving the question to lower courts.

“The Court leaves open the possibility that the Constitution forbids prosecuting the President for any official conduct, instructing the lower courts to address that question in the first instance,” she wrote. “I would have answered it now.”

In particular, the allegations that involve Trump pressuring state officials to appoint alternate slates of electors should not be immune from prosecution, Barrett wrote, citing Trump’s alleged request to Arizona’s House speaker at the time, Rusty Bowers.

“A President has no legal authority — and thus no official capacity — to influence how the States appoint their electors,” Barrett wrote. “I see no plausible argument for barring prosecution of that alleged conduct.”

Court enables Trump’s threat, critics say

Legal scholars and Democratic lawmakers decried the decision as a blow to democracy.

Tom Joscelyn, one of the principal authors of the final report from the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol, told States Newsroom Monday the “court is pretending that there’s some ambiguity on what is an official act or not an official act of indictment.”

“The bottom line is the facts are not really in dispute. They’re easy for all Americans to see. We all saw how Trump pressured Vice President Pence to overturn the election. When Pence refused to do Trump’s bidding, Trump sent a mob down to the Capitol to intimidate him and hunt him,” Joscelyn said. “So this is not something where there’s some great mystery here. We all know what happened.”

U.S. Rep. Daniel Goldman (D-N.Y.), who was a lead counsel for the U.S. House impeachments of Trump, including the 2021 proceeding related to Trump’s role in the Jan. 6 attack, said Trump has indicated he would use the office to seek retribution if he is returned to the White House.

“It’s not just the biggest threat in a generation,” Goldman said on the Biden campaign call. “It is far and away the greatest threat since the Civil War.”

The Democratic National Committee issued a statement saying President Joe Biden is “(t)he only thing standing between Donald Trump and his threats to our democracy … and the American people will stand once again on the side of democracy this November.”

Victory for ‘all future presidents’

Trump’s allies celebrated the decision.

House Speaker Johnson said in his statement the court “stated that presidents are entitled to immunity for their official acts. This decision is based on the obviously unique power and position of the presidency, and comports with the Constitution and common sense. As President Trump has repeatedly said, the American people, not President Biden’s bureaucrats, will decide the November 5th election.”

The far-right Heritage Foundation, the think tank behind the Project 2025 document to enshrine conservative policies should Trump win in November, also hailed the decision.

“Today, the Supreme Court recognized and breathed life into the important constitutional principle of separation of powers by providing former, current, and future presidents with absolute immunity for official acts that they undertook during their administrations,” John G. Malcolm, one of the foundation’s legal scholars, said in a statement.

“(A)nd also made it clear that the burden falls on the prosecution to demonstrate that any action taken by a former president clearly falls beyond the outer perimeter of his official responsibilities and on the side of being an unofficial act,” he said.

In a rambling post on Truth Social Monday afternoon, Trump again cheered the decision and also repeated claims that the New York state hush money case against him originated with Biden and was backed by Hungarian Jewish philanthropist George Soros — a yearslong trope repeated by the right wing.

“Today’s Historic Decision by the Supreme Court should end all of Crooked Joe Biden’s Witch Hunts against me, including the New York Hoaxes – The Manhattan SCAM cooked up by Soros backed D.A., Alvin Bragg, Racist New York Attorney General Tish James’ shameless ATTACK on the amazing business that I have built, and the FAKE Bergdorf’s ‘case,’” Trump wrote, also referring to the civil case in New York where he was found liable for sexually abusing a writer in a Bergdorf Goodman dressing room.

GOP-led states back Trump

Trump claimed absolute criminal immunity not long after a federal grand jury indicted him on allegations that he schemed to overturn the results of the 2020 presidential election, which he lost to Biden.

DOJ’s Smith officially charged the former president with conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction of, and attempt to obstruct, an official proceeding; and conspiracy against rights.

The former president argued that his acts were “official,” as they were conducted while he was still in office. He also claimed that the Constitution’s Impeachment Clause shields a president from criminal prosecution unless he or she is first impeached and convicted by Congress.

The claim led to some jaw-dropping moments in which Trump’s lawyer Sauer argued to both an appeals panel and the high court justices that presidents could not be criminally tried for ordering an assassination of a political rival unless they were first impeached by the House and convicted by the Senate, an inherently political process.

The high-profile case attracted numerous friend-of-the-court briefs.

GOP-led states lined up in support of Trump including 18 Republican state attorneys general who signed a brief in March accusing Smith of trying to “inflict maximum damage on President Biden’s political opponent before the November 2024 election.”

The attorneys general included on the brief were from Alabama, Florida, Idaho, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah and West Virginia.

Prior to the Supreme Court’s decision to take up the case, 26 former GOP officials warned of “terrifying possibilities” if the court accepted Trump’s claim of blanket immunity.

The officials, a mix of former GOP Department of Justice attorneys and lawmakers, wrote: “No Court should create a presidential immunity from federal criminal prosecution, even for official acts, that is so vast that it endangers the peaceful transfer of executive power that our Constitution mandates.”

– Maryland Matters reporter William J. Ford contributed to this report from Annapolis.