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Presidents are partially immune from prosecution for actions taken while they are in office, the US Supreme Court ruled Monday. The historic decision will likely delay and defang much of the Justice Department’s Jan. 6 case against former President Donald Trump. The election subversion case is widely regarded as the most significant of Trump’s legal troubles.
The 6-3 ruling along ideological lines dramatically expanded presidential powers; the court found that presidents are presumed immune from prosecution for acts taken in their official capacity as president, meaning prosecutors would have to vault a high bar to overcome that presumption. They do not have immunity for unofficial acts, but it’s unclear what constitutes an unofficial act.
“The president is not above the law,” Chief Justice John Roberts Jr. wrote for the majority. “But Congress may not criminalize the president’s conduct in carrying out the responsibilities of the executive branch under the Constitution.”
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It’s unclear exactly how much the ruling will delay Trump’s DC trial, but it almost certainly pushes its start date beyond the November presidential election. If Trump wins the election, he could have the charges dropped or pardon himself.
The case now returns to the courtroom of Federal District Court Judge Tanya Chutkan, where she’ll have the task of parsing what counts as an official act and what doesn’t. The test will come down to what acts are part of presidents’ “core constitutional powers,” but the Court has taken some of the central accusations of Special Counsel Jack Smith’s case against Trump — including that he weaponized the Department of Justice — off the table.
Chutkan will have to weigh in on other questions, like what kind of immunity Trump might have for pressuring Vice President Mike Pence in 2020 to use his role in the election certification process to overturn its results.
The justices found that different kinds of official acts enjoy different levels of immunity, another distinction Chutkan will have to apply, and that official actions can’t be used as evidence for the prosecution of unprotected, unofficial actions. That makes Smith’s case much more difficult to prove.
The bottom line: “The majority opinion leaves so much conduct by presidents beyond the reach of accountability and beyond the reach of criminal law,” Northeastern University School of Law professor Dan Urman told Semafor.
The View From The Dissenting Justices
The liberal justices dissented with grave warnings for the future of the country: Presidents can now take bribes and assassinate political opponents without fear of prosecution, Justice Sonia Sotomayor wrote, warning that future presidents could weaponize immunity for their own benefit. Justices typically say they “respectfully” dissent, as a matter of court etiquette, but Sotomayor’s biting opinion notably omitted the word.
“The court effectively creates a law-free zone around the president, upsetting the status quo that has existed since the founding,” she wrote. “This new official-acts immunity now ‘lies about like a loaded weapon’ for any president that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the nation.”
The View From Justice Clarence Thomas
In a concurring opinion — which agrees with the majority opinion but not the rationale behind it — Justice Clarence Thomas overtly questioned special counsel Jack Smith’s legitimacy, writing: “If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people.” No other justice joined Thomas’ concurrence.
The View From The Biden Campaign
After the ruling, the Biden campaign reminded voters of Trump’s actions on Jan. 6, another effort to combat ‘Trumpnesia.’ “Today’s ruling doesn’t change the facts, so let’s be very clear about what happened on January 6: Donald Trump snapped after he lost the 2020 election and encouraged a mob to overthrow the results of a free and fair election,” a senior Biden campaign adviser said in a statement following the decision.
On a press call, campaign surrogates hammered the message that the only way to defeat Trump is at the ballot box. “We can’t count on the Supreme Court, or any institution to hold him responsible. It’s going to be up to the voters in November,” said Harry Dunn, a former police officer who defended the US Capitol on Jan. 6.
New York Rep. Dan Goldman emphasized the stakes of the race, calling a second Trump presidency “far and away the biggest threat since the Civil War.” And Biden’s Deputy Campaign Manager Quentin Fulks said the decision gives Trump cover to “do exactly what he’s been saying he wants to do for months, which is enact revenge and retribution against his political enemies.”
