On Monday morning, the Supreme Court, by a vote of 6–3, handed Donald Trump, who is under indictment in multiple jurisdictions, a victory by declaring that former Presidents have a great deal of immunity from criminal prosecution related to their actions while in office. “At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute,” Chief Justice John Roberts wrote for the majority—the six conservatives, three of whom were appointed by Trump. Roberts added that, even for official actions outside that constitutional core, a former President is entitled, at a minimum, to “presumptive immunity.” Justice Sonia Sotomayor, in a dissent joined by Justices Elena Kagan and Ketanji Brown Jackson, wrote that this ruling is “disastrous” and “reshapes the institution of the Presidency.” Trump is running for President again. What is startling is not only the protection the Court has given him but the license it has granted him and his successors for what any of them might do next.
Trump didn’t get everything he asked for from the Supreme Court—but only because he asked for so, so much, including that a criminal trial might not be possible absent an impeachment conviction. Trump got more than enough to turn the January 6th indictment brought against him by Jack Smith in Washington, D.C., into, at best, a shard of its former self. The same can likely be said for the indictment against him in Fulton County, Georgia, for some of the same acts; Trump has already tried to get that case dismissed on immunity grounds. And the decision may undercut the Espionage Act prosecution against him in Florida, too. “PROUD TO BE AN AMERICAN!” Trump wrote on Truth Social after the decision, in a series of posts about “Hoaxes” and “Witch Hunts.” He added, “Biden should now call off his ‘dogs.’ ”
The Court found that Trump was absolutely immune, for example, in relation to his dealings with Justice Department officials, whom he allegedly enlisted in a scheme to drum up fraud allegations in states that Joe Biden won in 2020 and to substitute fake electoral-voter certificates for legitimate ones. The Court also found that he was presumptively immune with regard to his alleged attempts to strong-arm Vice-President Mike Pence into throwing out electoral votes. (This was presumptive rather than absolute immunity, because, on January 6th, Pence was acting as the president of the Senate, rather than strictly as V.P.; on most other days, Trump could have extorted him freely.) The Court ruled it would be the government’s burden to prove that prosecuting Trump for pressuring Pence would pose “no ‘dangers of intrusion on the authority and functions of the Executive Branch.’ ”
“No dangers, none at all,” Sotomayor wrote, with obvious dismay. The conservatives seem uninterested in the notion that the President’s authority and functions, which have ballooned over time, should sometimes be intruded upon. It is hard to imagine how the prosecution could get past such a hurdle. The immediate effect of the ruling will be to remand Smith’s case to Judge Tanya Chutkan, in the D.C. District Court, to sort out what, if anything, is left of the indictment. (Chutkan will also have to contend with the decision in Fischer v. United States, issued this past Friday, which narrowed the scope of an obstruction statute Smith used.) That process will take a good deal of time. It does not seem possible that the case will go to trial before the election.
Sotomayor is correct that it is hard to tell, from the majority opinion, what acts are in the “core” of a President’s duties, and thus eligible for absolute immunity, and which are in the “outer perimeter,” and thus subject to presumptive immunity. In her view, the distinction hardly matters—“Feel free to skip over those pages of the majority’s opinion”—since the end result is still immunity. But those pages are worth reading to get an idea of how big the core might ultimately be. It includes what the Court calls a President’s “exclusive” powers, such as pardons, appointments, and recognizing foreign nations; it’s less clear how acts associated with those powers factor into the immunity equation. The Court notes, after all, that the President’s “duties” include “overseeing international diplomacy and intelligence gathering, and managing matters related to terrorism, trade, and immigration.” Every one of those phrases can be expanded upon, too. What wouldn’t Trump, or another President, define as a matter “related to terrorism”?
Though the Court left open the possibility of prosecution for Trump’s “unofficial acts”—possibly including his scheming with people on his campaign—it also made it harder to argue that anything a President does really can be called unofficial. As Sotomayor put it, the ruling “narrows the conduct considered ‘unofficial’ almost to a nullity.” For example, it said that courts could not weigh a President’s “motives.” It also ruled that most of a President’s communications with the public, if not all of them, likely fell “comfortably” within at least the “outer perimeter” of his official acts. And, in a final, legally baffling move, the majority ruled that Trump’s official acts could not even be introduced as evidence in a trial against him.
That last turn was too much even for Justice Amy Coney Barrett, who declined to join in the section of the ruling on evidence. She gave the example of how hard it would be to prosecute a President who takes a bribe for an official act. “The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable,” she wrote. But her five fellow-conservatives would require such blindness.
Sotomayor, contemplating the evidence restriction, wrote, “Imagine a President states in an official speech that he intends to stop a political rival from passing legislation that he opposes, no matter what it takes to do so (official act). He then hires a private hitman to murder that political rival (unofficial act).” Would prosecutors really be prevented from mentioning the speech to jurors in proving premeditation? Apparently so. She also recalled a hypothetical presented in this case in a lower court: “Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”
In only slightly more restrained tones, Jackson, in a concurrence, agreed that even a murderer-President or one who “indisputably instigates an unsuccessful coup” would have “a fair shot” at immunity under Roberts’s model. Sotomayor expressed “fear for our democracy”; Jackson wondered how, in light of the ruling, courts could keep “Presidents from becoming Kings.”
The conservative majority answered their alarm with sarcasm, dismissiveness, and, perhaps most disturbingly, glorification of the personage of the President—swooning about a “vigorous” and “energetic” executive while warning of the dangers of one who is “feeble.” (Those words, in light of Biden’s debate struggles, might provoke a range of painful reflections.) Roberts wrote, of the dissents, “They strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today.” He’s wrong about that. The Court went further than it would have needed to, even if the goal was simply shielding Trump from Jack Smith.
What’s striking is that the dissenters are not trying to diminish the Presidency as it exists: both Sotomayor and Jackson outline the many ways that Presidents are already protected from criminal convictions for their official acts, including by being able to introduce what’s known as a “public authority” defense (which might, for example, keep a President who ordered a drone strike abroad from being charged with murder, if the killing was lawfully authorized). Furthermore, sitting Presidents are shielded from prosecution while in office, and former Presidents are absolutely immune from private civil suits for official acts. But, as Jackson wrote, the possibility of post-office criminal liability has long been understood to be part of our national “accountability paradigm.” It isn’t anymore.
Sotomayor added, “Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done.” The question now is: What can be done to mitigate the situation? One protection that is still present is impeachment. Indeed, a key message to take away from the Court’s ruling is that a divided government—or at least a Congress that is willing to use its impeachment powers—has never been more important. (Trump, after all, was impeached by the House twice, but acquitted both times by the Senate.) The other line of defense is voters themselves, and how they weigh whom to elect as President. They can’t count on the courts. ♦