The Supreme Court just gave presidents superpowers and rules ex-presidents have broad immunity, dimming chance of a pre-election Trump trial

 

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The Supreme Court just gave presidents  superpowers and rules ex-presidents have broad immunity, dimming chance of a pre-election Trump trial

The Supreme Court opinion in former President Donald Trump's immunity case is photographed Monday, July 1, 2024. In a historic ruling the justices said for the first time former presidents can be shielded from prosecution for at least some of what they do in the The Supreme Court on Monday ruled for the first time that former presidents have some immunity from prosecution, extending the delay in the Washington criminal case against Donald Trump on charges he plotted to overturn his 2020 presidential election loss and all but ending prospects the former president could be tried before the November election.

In a historic 6-3 ruling, the court's conservative majority, including the three justices appointed by Trump. returned his case to the trial court to determine what is left of special counsel Jack Smith's indictment The outcome means additional delay before Trump could face trial.
The court's decision in a second major Trump case this term, along with its ruling rejecting efforts to bar him from the ballot because of his actions following the 2020 election, underscores the direct and possibly uncomfortable role the justices are playing in the November election.
"Under our constitutional structure of separated powers, the nature of presidential power entitles a former president to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority," Chief Justice John Roberts wrote for the court. "And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts."
The three liberal justices dissented.
In a scathing dissent she read from in the courtroom, Justice Sonia Sotomayor said, "Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent." Sotomayor said the decision "makes a mockery of the principle, foundational to our Constitution and system of government, that no man is above the law."
The protection afforded presidents by the court, she said, "is just as bad as it sounds, and it is baseless."
Trump posted in all capital letters on his social media network shortly after the decision was released: "BIG WIN FOR OUR CONSTITUTION AND DEMOCRACY. PROUD TO BE AN AMERICAN!"

The Supreme Court’s ruling in 

Trump v. the United States has unmoored presidential policymaking, including in foreign affairs, from the rule of law. The impact of this epic judgment will likely reverberate for years in the nation’s domestic and foreign policies.
What did the Supreme Court decide in Trump v. United States?

The case before the Supreme Court centered on the August 2023 indictment [PDF] charging former President Donald Trump with violating numerous federal criminal statutes when he sought to overturn the results of the last presidential election prior to leaving office on January 20, 2021. Part of the indictment covers Trump’s alleged role in the January 6 insurrection on Capitol Hill that year.

Trump’s appeal to the Supreme Court revolved around distinguishing official from unofficial acts of a president and the scope of a president’s immunity from criminal prosecution after leaving office. The majority ruled that a president has absolute immunity from criminal liability for conduct “within his exclusive sphere of constitutional authority.” They further found that the president enjoys “presumptive immunity” for “acts within the outer perimeter of his official responsibility…unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’” Not surprisingly, the court found that a president enjoys no immunity under federal criminal law to commit unofficial acts.
As to the specific allegations against Trump in the government’s case, the court ruled that his alleged efforts to pressure the Justice Department to conduct sham investigations into election fraud were actions taken within his exclusive constitutional powers and therefore absolutely immune from prosecution.
The majority found that his attempt to pressure Vice President Mike Pence to take certain acts in connection with the electoral vote certification process involved official conduct, and were at least presumptively immune from prosecution. The court reasoned similarly regarding Trump’s controversial tweets and public address in the lead up to the violent march on Capitol Hill. The majority left it to the lower courts to determine whether Trump should receive immunity for these acts.
What does the ruling mean for U.S. democracy and the electoral process?
The immediate consequence of the ruling—and of the monthslong delay in delivering it—is that the Supreme Court has deprived Americans voting in the November 2024 presidential election a jury trial to determine whether one of that race’s candidates violated federal criminal law in connection with the 2020 election.
If Trump becomes the next president, he could shut down the entire prosecution against him by using his executive authority (regardless of the immunity judgment). If he loses the election in November, his trial will likely plod through the federal judiciary with appeals over what constitutes an official or unofficial act and whether presumptive immunity survives.
Remarkably, the court’s ruling would permit a future president to ask an executive branch official to violate a federal criminal statute in connection with elections [PDF], and it would grant that president at least presumptive immunity for those actions. A president could thus be emboldened, for example, to weaponize the Justice Department in an attempt to overturn state vote tallies and facilitate fraudulent elector rolls for the Electoral College.
However, the court did not extend any immunity to the vice president or other executive branch officials, so they would remain subject to federal criminal prosecution, even if they were to break the law at a president’s behest. Without a presidential pardon, these officials could be indicted after the president leaves office. For any federal lawyers involved in criminal conduct, state bar associations could disbar them.
What impact could the ruling have on the president’s powers in foreign policy and national security?
The court has deeply undermined the United States’s credibility in promoting the rule of law overseas, and it may have opened the door for U.S. presidents to commit criminal acts in foreign policy or national security without legal consequence. Under the Constitution, as the court’s ruling confirmed, presidents are granted various powers in the realm of foreign relations, including commanding the armed forces, making treaties, recognizing foreign governments, and overseeing intelligence gathering.
The court’s ruling gives wide room for presidents to commit abuses previously checked by assumed restraints, particularly under federal criminal law. These abuses include:ordering the military to invade a foreign country and commit genocide against a minority religious group;
ordering the military to commit major war crimes and torture against a civilian population in an enemy nation during an armed conflict;
instructing federal officials to falsify documents required for the sale of U.S. weapons and munitions to a foreign purchaser under the Arms Export Control Act;
sharing highly classified national security information (and making no attempt to declassify it) with a foreign leader; and
ordering the U.S. Border Patrol to massacre hundreds of sleeping migrants camped on the U.S.-Mexico border.

While in office, a president who had engaged in any of the above acts could still, of course, be impeached by Congress for “high Crimes and Misdemeanors.” Military personnel and other executive branch officials who comply with or aid the president in these actions would risk prosecution under the Uniform Code of Military Justice or the federal criminal code. As noted earlier, they could also seek presidential pardons for their illegal conduct. But military discipline guided by the rule of law would be dangerously disrupted.
Will the ruling have any implications for the U.S. in international legal forums?
The ruling has no practical effect for International Court of Justice (ICJ) cases in which the United States would be a party. The ICJ adjudicates only state responsibility, and thus a president’s immunity under U.S. law would not affect ICJ deliberations.
If a U.S. president (sitting or former) were to be investigated by the International Criminal Court (ICC), whether or not the United States is party to the Rome Statute [PDF] that established the ICC, it would not recognize the immunity granted to them by the Supreme Court. Article 27 of the Rome Statute explicitly denies the protection of immunities granted to any official.
The ICC affords any nation the initial opportunity to investigate and decide whether to prosecute individuals accused of any of the offenses named by the Rome Statute (genocide, crimes against humanity, war crimes, aggression) and in the result avoid ICC action. However, if a sitting or ex-president were to invoke immunity to block a domestic inquiry, it would ironically expose them directly to an ICC investigation.

Smith's office declined to comment on the ruling.
Senate Majority Leader Chuck Schumer denounced the ruling as "a disgraceful decision," made with the help of the three justices that Trump appointed himself.
"It undermines SCOTUS's credibility and suggests political influence trumps all in our courts today," the New York Democrat said on X, the platform formerly known as Twitter.
The justices knocked out one aspect of the indictment. The opinion found Trump is "absolutely immune" from prosecution for alleged conduct involving discussions with the Justice Department.
Trump is also "at least presumptively immune" from allegations that he tried to pressure Vice President Mike Pence to reject certification of Democrat Joe Biden's electoral vote win on Jan. 6, 2021. Prosecutors can try to make the case that Trump's pressure on Pence still can be part of the case against him, Roberts wrote.
The court directed a fact-finding analysis on one of the more striking allegations in the indictment -- that Trump participated in a scheme to enlist fake electors in battleground states won by Biden who would falsely assert that Trump had won. Both sides had dramatically different interpretations as to whether that effort could be construed as official, and the conservative justices said determining which side is correct would require additional analysis at the trial court level.
That work will fall to U.S. District Judge Tanya Chutkan, who would preside over Trump's trial.
Trump still could face a trial, said Notre Dame law professor Derek Muller. "But the fact remains that it is almost impossible to happen before the election."
David Becker, an election law expert and the executive director of the nonprofit Center for Election Innovation and Research, called the breadth of immunity granted to Trump "incredibly broad" and "deeply disturbing."
"Almost anything that a president does with the executive branch is characterized as an official act," he said on a call with reporters following the ruling. "I think putting aside this particular prosecution, for any unscrupulous individual holding the seat of the Oval Office who might lose an election, the way I read this opinion is it could be a roadmap for them seeking to stay in power."
Becker also lamented the time the Supreme Court took with the ruling, saying Americans had an interest in knowing the result sooner given Trump's candidacy in the upcoming presidential election.
The ruling was the last of the term, and it came more than two months after the court heard arguments, far slower than in other epic high court cases involving the presidency, including the Watergate tapes case.
The Republican former president has denied doing anything wrong and has said this prosecution and three others are politically motivated to try to keep him from returning to the White House.
In May, Trump became the first former president to be convicted of a felony, in a New York court. He was found guilty of falsifying business records to cover up a hush money payment made during the 2016 presidential election to a porn actor who says she had sex with him, which he denies. He still faces three other indictments.
Smith is leading the two federal probes of the former president, both of which have led to criminal charges. The Washington case focuses on Trump's alleged efforts to overturn the 2020 election after he lost to Biden. The case in Florida revolves around the mishandling of classified documents. A separate case, in Georgia, also turns on Trump's actions after his defeat in 2020.
If Trump's Washington trial does not take place before the 2024 election and he is not given another four years in the White House, he presumably would stand trial soon thereafter.
But if he wins, he could appoint an attorney general who would seek the dismissal of this case and the other federal prosecution he faces. He could also attempt to pardon himself if he reclaims the White House. He could not pardon himself for the conviction in state court in New York.

The Supreme Court that heard the case included three justices appointed by Trump — Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh — and two justices who opted not to step aside after questions were raised about their impartiality.
Justice Clarence Thomas' wife, Ginni, attended the rally near the White House where Trump spoke on Jan. 6, 2021, though she did not go the Capitol when a mob of Trump supporters attacked it soon after. Following the 2020 election, she called the outcome a "heist" and exchanged messages with then-White House chief of staff Mark Meadows, urging him to stand firm with Trump as he falsely claimed that there was widespread election fraud.
Justice Samuel Alito said there was no reason for him to step aside from the cases following reports by The New York Times that said flags similar to those carried by the Jan. 6 rioters flew above his homes in Virginia and on the New Jersey shore. His wife, Martha-Ann Alito, was responsible for flying both the inverted American flag in January 2021 and the "Appeal to Heaven" banner in the summer of 2023, he said in letters to Democratic lawmakers responding to their recusal demands.
Trump's trial had been scheduled to begin March 4, but that was before he sought court-sanctioned delays and a full review of the issue by the nation's highest court.
Before the Supreme Court got involved, a trial judge and a three-judge appellate panel had ruled unanimously that Trump can be prosecuted for actions undertaken while in the White House and in the run-up to Jan. 6.
"For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant," the appeals court wrote in February. "But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution."
Chutkan ruled against Trump's immunity claim in December. In her ruling, Chutkan said the office of the president "does not confer a lifelong 'get-out-of-jail-free' pass."
"Former Presidents enjoy no special conditions on their federal criminal liability," Chutkan wrote. "Defendant may be subject to federal investigation, indictment, prosecution, conviction, and punishment for any criminal acts undertaken while in office."


CNN —
With its immunity ruling on Monday, the Supreme Court granted former President Donald Trump’s wish of all but guaranteeing that his criminal trial for trying to overturn the 2020 presidential election will not go to trial before the 2024 election in November.
It also granted presidents in general a definitive “absolute immunity” from prosecution for core official acts and said presidents should be presumed immune for a much more expansive list of acts.



Related article


In the view of the majority comprised of the six conservative justices on the court, the decision does not place presidents in general, and Trump in particular, above the law. But the three liberals dissented with a warning about how elevating a president will affect American democracy.
The decision has the near-term result of delaying Trump’s trial while a court in Washington, DC, considers which criminal activity that Trump is accused of can be considered “unofficial.” It also has the long-term effect of placing presidents in a different system of justice than other Americans.
Here are key lines from a landmark ruling:
What is this new immunity?
Chief Justice John Roberts explains it in the majority opinion as including absolute immunity for some actions and a presumption of immunity for others.

We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity. At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient.
Why does a president need this immunity?
So that he can act boldly as president and take actions without fear of later prosecution clouding his judgement, according to the court. Here’s Roberts:
Potential criminal liability, and the peculiar public opprobrium that attaches to criminal proceedings, are plainly more likely to distort Presidential decisionmaking than the potential payment of civil damages.
The hesitation to execute the duties of his office fearlessly and fairly that might result when a President is making decisions under “a pall of potential prosecution,” … raises “unique risks to the effective functioning of government.”
What does it say in the Constitution about presidents getting special immunity?
Nothing. But that’s no problem, according to Roberts.
True, there is no “Presidential immunity clause” in the Constitution. But there is no “‘separation of powers clause’” either. … Yet that doctrine is undoubtedly carved into the Constitution’s text by its three articles separating powers and vesting the Executive power solely in the President.
How far does this immunity extend?
A president gets “at least a presumptive immunity” even for acts “within the outer perimeter of his official responsibility,” according to the court. But it’s careful to add that he gets no immunity for “unofficial acts” – and despite the broad reach of the immunity, the court argues presidents are still accountable.
The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution.
Are any of the things Trump is accused of in special counsel Jack Smith’s indictment outside this blanket of immunity?
During oral arguments in the case back in April, Trump’s attorney, John Sauer, told Justice Amy Coney Barrett that multiple elements of the indictment would indeed be “private,” or unofficial, acts. These include, for instance, getting an outside attorney to organize slates of false electors.
Barrett, in a concurring opinion on Monday, said she would make clear in the decision what was official versus unofficial. But the majority takes no position and wants the trial court to go through the allegations individually. Trump can then appeal whatever the trial court decides. Here’s Roberts:
… the current stage of the proceedings in this case does not require us to decide whether this immunity is presumptive or absolute. … Because we need not decide that question today, we do not decide it.
Does the majority tell the trial court what might be official or not?
The majority gives quite a bit of detail.
Trump has “absolute immunity” for any instructions or pressure he exerted on his acting attorney general, for instance. Plus, the court won’t allow as evidence any interviews with people who worked in the administration (nullifying much of the evidence gathered by the House select committee that investigated the January 6, 2021, events). And it also won’t let a court consider a president’s motives for taking an action.
Such an inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II interests that immunity seeks to protect.
It’s an open question for the lower court to decide if Trump’s pressure on then-Vice President Mike Pence to disregard the 2020 election results involved “official conduct,” but the Supreme Court put that pressure in the “presumptively immune” category.
We accordingly remand to the District Court to determine in the first instance—with the benefit of briefing we lack—whether Trump’s conduct in this area qualifies as official or unofficial.
The majority thinks Trump’s tweets encouraging people to go to the Capitol and pressure Pence are within the “outer perimeter of his official responsibilities,” but they’re not sure and they expect it will be challenging for the lower court to muddle through these questions.
Why can’t a jury make these decisions?
Juries can’t even consider official acts in terms of a prosecution, according to the Supreme Court.
Allowing prosecutors to ask or suggest that the jury probe official acts for which the President is immune would thus raise a unique risk that the jurors’ deliberations will be prejudiced by their views of the President’s policies and performance while in office. The prosaic tools on which the Government would have courts rely are an inadequate safeguard against the peculiar constitutional concerns implicated in the prosecution of a former President.
So the Supreme Court gave Trump everything he wanted?
It certainly embraced Trump’s theory of immunity and pretty much guaranteed the trial will not happen before the election, although the majority says they were restrained since they rejected his request to completely dismiss the case.
Trump asserts a far broader immunity than the limited one we have recognized. He contends that the indictment must be dismissed because the Impeachment Judgment Clause requires that impeachment and Senate conviction precede a President’s criminal prosecution.
So there is a special system of justice for presidents?
The president is more than a person, according to Roberts.
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. 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.
The majority dismisses warnings about a president operating above the laws as “fear mongering on the basis of extreme hypotheticals.” It’s more important to protect the president from political prosecutions, the court says.
The dissents overlook the more likely prospect of an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next. … The enfeebling of the Presidency and our Government that would result from such a cycle of factional strife is exactly what the Framers intended to avoid.
Roberts borrows from Trump’s attorneys when he quotes George Washington’s farewell address, in which he warns about factions. The problem with that particular quote, as I found earlier this year, is that Washington also warned about elevating a person above the law.
Does the court mention the politics of today?
Roberts says the court’s considerations are more far-reaching than what’s happening at the moment.
This case poses a question of lasting significance: When may a former President be prosecuted for official acts taken during his Presidency? Our Nation has never before needed an answer. But in addressing that question today, unlike the political branches and the public at large, we cannot afford to fixate exclusively, or even primarily, on present exigencies. In a case like this one, focusing on “transient results” may have profound consequences for the separation of powers and for the future of our Republic.
Did it say anything about Smith?
The majority did not weigh in on the brewing argument among conservatives that Smith should not even have a job and that his role as a special counsel is unconstitutional. But Justice Clarence Thomas endorsed the idea in a concurring opinion.
In this case, there has been much discussion about ensuring that a President “is not above the law.” But, as the Court explains, the President’s immunity from prosecution for his official acts is the law. … In that same vein, the Constitution also secures liberty by separating the powers to create and fill offices. And, there are serious questions whether the Attorney General has violated that structure by creating an office of the Special Counsel that has not been established by law.
What did Barrett say about alternate electors?
Barrett, a Trump appointee, wrote her own concurrence in which she disagreed with the majority on some key points. She said they could easily have expressed that some of Trump’s conduct was unofficial.

Sorting private from official conduct sometimes will be difficult—but not always. Take the President’s alleged attempt to organize alternative slates of electors. … In my view, that conduct is private and therefore not entitled to protection. … a President has no legal authority—and thus no official capacity—to influence how the States appoint their electors. I see no plausible argument for barring prosecution of that alleged conduct.
What was in the blistering dissent?
Writing for the three liberals on the court, Justice Sonia Sotomayor blasted the majority as inventing an “atextual, ahistorical, and unjustifiable immunity that puts the President above the law.” She said the court makes it difficult to imagine what might be “unofficial” conduct on the part of the president.
In sum, the majority today endorses an expansive vision of Presidential immunity that was never recognized by the Founders, any sitting President, the Executive Branch, or even President Trump’s lawyers, until now. Settled understandings of the Constitution are of little use to the majority in this case, and so it ignores them. … In fact, the majority’s dividing line between “official” and “unofficial” conduct narrows the conduct considered “unofficial” almost to a nullity.
The majority “pays lip service” to the idea that presidents are not above the law “but it then proceeds to place former Presidents beyond the reach of the federal criminal laws for any abuse of official power.”