- An American president has immunity for official actions core to the constitutional mandate of the office, the US Supreme Court ruled on Monday.
- But for “private acts”, they can be criminally prosecuted.
- Before Donald Trump, the issue never arose.
The US Supreme Court found on Monday that Donald Trump cannot be prosecuted for any actions that were within his constitutional powers as president, but can for private acts, in a landmark ruling recognising for the first time any form of presidential immunity from prosecution.
The justices, in a 6-3 ruling written by Chief Justice John Roberts, threw out a lower court’s decision that had rejected Trump’s claim of immunity from federal criminal charges involving his efforts to undo his 2020 election loss to Joe Biden. The six conservative justices were in the majority. Its three liberals dissented.
Trump is the Republican candidate challenging Biden, a Democrat, in the 5 November US election in a 2020 rematch. The Supreme Court’s slow handling of the case, coupled with its decision to return key questions about the scope of Trump’s immunity to the lower courts to resolve, make it improbable he will be tried on the election subversion charges brought by Special Counsel Jack Smith charges before the election.
“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,” Roberts wrote.
Immunity for former presidents is “absolute” with respect to their “core constitutional powers,” Roberts wrote, and a former president has “at least a presumptive immunity” for “acts within the outer perimeter of his official responsibility,” meaning that prosecutors face a high legal bar to overcome that presumption.
Roberts cited the need for presidents to “execute the duties of his office fearlessly and fairly” without the threat of prosecution.
“As for a president’s unofficial acts,” Roberts added, “there is no immunity.”
Trump hailed the ruling in a social media post, writing: “BIG WIN FOR OUR CONSTITUTION AND DEMOCRACY. PROUD TO BE AN AMERICAN!”
The court analyzed four categories of conduct contained in Trump’s indictment. They are: his discussions with Justice Department officials following the 2020 election; his alleged pressure on then-Vice President Mike Pence to block congressional certification of Biden’s election win; his alleged role in assembling fake pro-Trump electors to be used in the certification process; and his conduct related to the 6 January 2021, attack on the US Capitol by his supporters.
The court found Trump was absolutely immune for conversations with Justice Department officials. Trump is also “presumptively immune” regarding his interactions with Pence, it decided, but returned that and the two other categories to lower courts to determine whether Trump has immunity.
The ruling marked the first time since the nation’s 18th century founding that the Supreme Court has declared that former presidents may be shielded from criminal charges in any instance. The court’s conservative majority includes three justices Trump appointed.
The court decided the case on the last day of its term.
Trump, 78, is the first former US president to be criminally prosecuted as well as the first former president convicted of a crime. Smith’s election subversion charges embody one of the four criminal cases Trump has faced.
The Biden campaign said in a statement that the “ruling doesn’t change the facts, so let’s be very clear about what happened on Jan. 6: Donald Trump snapped after he lost the 2020 election and encouraged a mob to overthrow the results of a free and fair election.”
‘Misguided wisdom’
Justice Sonia Sotomayor, joined by fellow liberal Justices Elena Kagan and Ketanji Brown Jackson, delivered a sharply worded dissent, saying the ruling “makes a mockery of the principle, foundational to our Constitution and system of government, that no man is above the law.”
Sotomayor added: “Relying on little more than its own misguided wisdom about the need for bold and unhesitating action by the president, the court gives former President Trump all the immunity he asked for and more.”
Sotomayor said the ruling “reshapes the institution of the presidency.”
UCLA School of Law professor Rick Hasen, a critic of Trump’s efforts to overturn his election defeat, said: “The Supreme Court has put out a fact-intensive test on the boundaries of the president’s immunity – with a huge thumb on the scale favoring the president’s immunity – in a way that will surely push this case past the election.”
“Sorting out the court’s opinion and how it applies is going to take a while,” Georgetown University law professor Erica Hashimoto added. “No chance of a pre-election trial.”
Trump’s trial had been scheduled to start on 4 March before the delays over the immunity issue. Now, no trial date is set. Trump made his immunity claim to the trial judge in October, meaning the issue has been litigated for about nine months.
In the special counsel’s August 2023 indictment, Trump was charged with conspiring to defraud the United States, corruptly obstructing an official proceeding and conspiring to do so, and conspiring against the right of Americans to vote. He has pleaded not guilty.
Trump had argued that he is immune from prosecution because he was serving as president when he took the actions that led to the charges. During April 25 arguments in the case, Trump’s lawyer said without immunity sitting presidents would face “blackmail and extortion” by political rivals due to the threat of future prosecution.
In a separate case brought in New York state court, Trump was found guilty by a jury in Manhattan on 30 May on 34 counts of falsifying documents to cover up hush money paid to a porn star to avoid a sex scandal before the 2016 election. Trump also faces criminal charges in two other cases. He has pleaded not guilty in those and called all the cases against him politically motivated.
A spokesperson for Smith declined to comment on Monday. A lawyer for his office told the Supreme Court during arguments that the “absolute immunity” sought by Trump would shield presidents from criminal liability for bribery, treason, sedition, murder and, as in this case, trying to overturn the proper results of an election and stay in power.
During the arguments, justices asked hypothetical questions involving a president selling nuclear secrets, taking a bribe or ordering a coup or political assassination.
A plodding timeline
Smith, seeking to avoid trial delays, had asked the justices in December to perform a fast-track review after Trump’s immunity claim was rejected by US District Judge Tanya Chutkan that month. Rather than resolve the matter promptly, the justices denied Smith’s request and let the case proceed in a lower court, which upheld Chutkan’s ruling against Trump on Feb. 6.
The immunity ruling comes 20 weeks after Trump on 12 February sought relief from the Supreme Court. By contrast, it took the court less than nine weeks in another major case to reinstate Trump to the presidential primary ballot in Colorado after he appealed a lower court’s ruling that had disqualified him for engaging in an insurrection by inciting and supporting the attack on the US Capitol by his supporters.
Federal prosecutors have accused Trump of pressuring government officials to overturn the election results and encouraging his supporters to march to the Capitol on Jan. 6 to push Congress not to certify Biden’s victory, based on false claims of widespread voting fraud. Trump supporters attacked police and stormed the Capitol, sending lawmakers and others fleeing. Trump and his allies also are accused of devising a plan to use false electors from key states to thwart certification.
Not since its landmark Bush v. Gore decision, which handed the disputed 2000 US election to Republican George W. Bush over Democrat Al Gore, has the Supreme Court played such an integral role in a presidential race.
Trump also faces election subversion charges in state court in Georgia and federal charges in Florida brought by Smith relating to keeping classified documents after leaving office.
If Trump regains the presidency, he could try to force an end to the prosecution or potentially pardon himself for any federal crimes.
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