The US Supreme Court ruled on Monday that former President Donald Trump and other presidents enjoy a significant degree of immunity for actions taken as President, in a decision that could reverberate not only in Trump’s criminal cases, but for future presidents.
The court split 6-3 along ideological lines in finding that a President is: absolutely immune for actions taken while exercising his “core constitutional powers”; and entitled to the presumption of immunity for all official acts.
It said this was “required to safeguard the independence and effective functioning of the executive branch, and to enable the President to carry out his constitutional duties without undue caution”.
The court did find, though, that a President is not immune from prosecution for unofficial acts.
That last finding opens the door to Trump’s 2020 federal election subversion trial continuing. But the decision takes some Trump conduct off the table and leaves plenty up in the air. That should lead to an even more protracted legal battle that now appears even more likely to push the proceedings beyond the 2024 election, in which Trump is the presumptive Republican nominee.
Below are some takeaways from the ruling.
While Trump didn’t get the “absolute” immunity he initially sought for all acts — oral arguments suggested it was unlikely he would — the decision is clearly a political victory for him. He got more than many predicted, and it should tie up his case.
The justices didn’t delve deeply into extensive details of what is and isn’t fair game in Trump’s trials. They instead mostly set broad parameters and sent the case back to US District Court Judge Tanya S. Chutkan to consider how those parameters affect the case.
A few key points:
All of which means some of Trump’s conduct can still be prosecuted, but some cannot. Figuring out what can and cannot be is still to be determined.
The other crucial point is this: The court ruled not only that Trump can’t be prosecuted for certain conduct, but that conduct for which he is immune can’t even be used as evidence against him. So his interactions with Justice Department officials, for instance, can’t be used to establish a criminal conspiracy to overturn the election.
On this point, one of the six conservative justices in the majority dissented.
“The constitution does not require blinding juries to the circumstances surrounding conduct for which presidents can be held liable,” Justice Amy Coney Barrett wrote in a concurrence.
“To make sense of charges alleging a quid pro quo, the jury must be allowed to hear about both the quid and the quo, even if the quo, standing alone, could not be a basis for the President’s criminal liability.”
While Trump can still technically be prosecuted, the decision will lead to plenty of uncertainty and — most crucially for the 2024 election –— probably delay matters even further. Trump wasn’t expected to face trial before the election; this reduces whatever chance existed.
That’s because Chutkan will have to consider what parts of the prosecution’s case are now permitted. And that could lead to lengthy arguments and consideration. Such decisions could also lead to lengthy appeals. Chutkan previously stated she would give Trump’s legal team three months to prepare for a trial should the case be sent back to her. That meant the earliest trial date was already October, irrespective of the new decisions that will have to be made.
The Supreme Court’s majority suggested certain aspects of the indictment will now have to be revisited, including comments Trump made on January 6.
“[The indictment] includes only select tweets and brief snippets of the speech Trump delivered on the morning of January 6, omitting its full text or context,” the majority wrote. “Whether the tweets, that speech, and Trump’s other communications on January 6 involve official conduct may depend on the content and context of each.
“This necessarily fact-bound analysis is best performed initially by the district court”.
It’s tempting to view this decision in the context of Trump’s trials because that’s the immediate concern. But it will also have far-reaching implications for future presidents, including for a potential second Trump term.
The court’s liberal wing raised a giant red flag on that front, casting the decision as empowering future presidents to take drastic actions.
Perhaps the most striking arguments in the case revolved around hypotheticals about what a grant of immunity could mean in the future. Would a president be immune from prosecution for ordering Seal Team 6 to assassinate a rival? Could he order the military to conduct a coup and not be charged?
The court’s liberals say that’s now on the table. Justice Sonia Sotomayor went the furthest in her dissent.
“Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune,” Sotomayor wrote. “Organises a military coup to hold on to power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.
“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,” she wrote.
Justice Ketanji Brown Jackson was more measured, warning only that a President could now be immune from such charges.
“Thus, even a hypothetical President who admits to having ordered the assassinations of his political rivals or critics … or one who indisputably instigates an unsuccessful coup … has a fair shot at getting immunity under the majority’s new presidential accountability model,” Jackson wrote.
The decision lands as Trump appears to be an increasing favourite to reclaim the White House in the 2024 election after President Joe Biden’s poor debate performance last Thursday, and Trump has at the very least demonstrated a tendency to push the limits of the law and presidential power.
The decision could provide Trump a roadmap for exploiting those powers, and the liberal justices clearly fear what he might do with that.
“With fear for our democracy, I dissent,” Sotomayor concluded.
The ruling caps a remarkably bad five-day period for Democrats.
First came Biden’s awful debate performance on Thursday. Then came a pair of Supreme Court rulings on Friday limiting government prosecutions of January 6 defendants — a significant PR victory for Trump — and giving the right a long-sought tool to challenge federal agency officials.
Now comes a ruling that significantly complicates the government’s case against Trump, at the least, and could empower Trump to wield executive power in more extreme ways in a second term.
Given that prospect, which Democrats so fear, it’s likely that Monday’s ruling will add even more urgency to internal party debates about how to proceed in the 2024 election — and whether Biden is the right candidate to carry the torch forward.
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