July 1, 2024
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. And the system of separated powers designed by the Framers has always demanded an energetic, independent Executive. The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts. That immunity applies equally to all occupants of the Oval Office, regardless of politics, policy, or party.
Chief Justice John Roberts in the landmark 6-3 ruling, writing for the majority
Backstory: Former President Trump faces criminal charges in D.C. federal court where he is accused of election interference in connection with the 2020 election. Trump’s lawyers argued he is “protected” or “immune” from criminal prosecution for any criminal acts he allegedly committed while president. The Supreme Court disagreed, ruling that presidential immunity exists in some, but not all, scenarios.
BIG PICTURE: A U.S. President does have some immunity to criminal prosecution.
The Supreme Court rejected former President Trump’s claim of absolute immunity (immunity from prosecution) for all actions taken as president. The Court ruled that “official” acts – those that involve the “President’s exercise of his core constitutional powers” – are entitled to absolute immunity from criminal prosecution, whereas other “remaining official actions” are entitled to at least a presumption of immunity from prosecution. Here’s an example: The Court noted that the “allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the [election] certification proceeding” during the election of 2020 fall within the zone of presumptive immunity. With respect to unofficial acts, the court stated: “The President enjoys no immunity for his unofficial acts, and not everything the President does is official.” As for guidance as to what constitutes an “unofficial” act, the Supremes left that to the judge overseeing a case to decide.
How does this apply to the case vs. former President Trump? The ruling allows the federal election interference case to proceed, but the timeline remains TBD.
The Court sent the case back down to the lower courts to determine which of former President Trump’s acts at issue in the case are “unofficial” and thus potentially subject to prosecution. Those time-consuming inquiries, which require “a fact-specific analysis of the indictment’s extensive and interrelated allegations” will first be tackled at the trial court level by Judge Tanya Chutkan. However, her forthcoming rulings are all but certain to be appealed, leading the appellate courts to get involved, and, perhaps, even landing the case back at the Supreme Court. In other words, no one expects a trial or verdict before Election Day.
First of its kind ruling = first of its kind laws. Overall, the ruling offers more questions than answers.
The Court’s majority decision sets forth some general guidance for the lower courts to use in deciding which acts are “official” and “unofficial,” but very few bright-line rules. In doing so, the ruling all but ensures years of further litigation on the issues specific to former President Trump’s case, and decades more on the larger overall issue of presidential immunity from criminal prosecution. It’s likely that this case could be the first in a new line of case law that explores when, how and under what circumstances a president can be criminally prosecuted. Ultimately, what this ruling means for the American presidency is yet to be decided.
The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. … When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. 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. … Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.
Associate Justice Sonia Sotomayor in her dissenting opinion joined by justices Elena Kagan and Ketanji Brown Jackson.
by Stephanie Wagner, based in Florida
