On Monday, the United States Supreme Court ruled in Trump v. United States, the so-called Trump immunity case.
In short, in a 6-3 decision, the Supreme Court declined to determine how to distinguish official versus unofficial acts. Instead, it will send the case back to the lower courts to resolve.
“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. And he is entitled to at least presumptive immunity from prosecution for all his official acts,” the ruling, written by Chief Justice Roberts, explains. “There is no immunity for unofficial acts.”
The court also indicated that “no court has thus far considered how” to differentiate between official and unofficial acts.
Despite the unprecedented nature of this case, and the very significant constitutional questions that it raises, the lower courts rendered their decisions on a highly expedited basis. Because those courts categorically rejected any form of Presidential immunity, they did not analyze the conduct alleged in the indictment to decide which of it should be categorized as official and which unofficial. Neither party has briefed that issue before us (though they discussed it at oral argument in response to questions). And like the underlying immunity question, that categorization raises multiple unprecedented and momentous questions about the powers of the President and the limits of his authority under the Constitution.
The high court did offer some guidance.
Certain allegations—such as those involving Trump’s discussions with the Acting Attorney General—are readily categorized in light of the nature of the President’s official relationship to the office held by that individual. Other allegations—such as those involving Trump’s interactions with the Vice President,state officials, and certain private parties, and his comments to the general public—present more difficult questions.
Roberts concluded:
This case poses a question of lasting significance: When may aformer President be prosecuted for official acts taken during his Presidency? In answering that question, unlike the political branches andthe public at large, the Court cannot afford to fixate exclusively, oreven primarily, on present exigencies. Enduring separation of powersprinciples guide our decision in this case. The President enjoys no immunity for his unofficial acts, and not everything the President does isofficial. The President is not above the law. But under our system ofseparated powers, the President may not be prosecuted for exercisinghis core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts. That immunityapplies equally to all occupants of the Oval Office.
Justices Sotomayor, Kagan, and Jackson dissented, with Jackson filing the dissenting opinion.
The case was perhaps the most closely watched case on the docket this year, not just because of what it would mean for the Biden administration’s prosecution of Trump for challenging the 2020 election results over reports of widespread fraud but also because of its implications for all of the ongoing federal court cases against Trump.
The Biden administration has weaponized the justice system against Donald Trump in the hopes of thwarting his presidential campaign. The left also launched a nationwide effort to remove him from the ballot, which ultimately failed after the Supreme Court stepped in.
Trump has said that all former presidents should have immunity for official actions taken while in office. His legal team argued that a congressional impeachment conviction is necessary for any ex-president to be criminally charged for the same conduct in federal court. Two lower courts had previously ruled against Trump.
Part of Trump’s strategy has been to delay his cases until after the 2024 election. Some have argued that just getting the case to the Supreme Court was a victory for him, as the time it has taken for the court to rule on the matter has postponed proceedings long enough that no trial would likely conclude before the presidential election.
“Trump has already won something,” Case Western Reserve University’s School of Law professor Jonathan Entin told CNN last month. “As a practical matter, Trump has gained time here, regardless of how the court decides the case.”
But there were practical matters at issue in this case that needed to be resolved by the Supreme Court.
“Criminal prosecution, with its greater stigma and more severe penalties, imposes a far greater ‘personal vulnerability’ on the President than any civil penalty,” Trump’s lawyers argued when they asked the Supreme Court to take the case. “The threat of future criminal prosecution by a politically opposed Administration will overshadow every future President’s official acts – especially the most politically controversial decisions.”
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Trump has long asserted that without immunity, every outgoing president would face immediate indictment by the opposing party. He reiterated his stance that a president would be unable to carry out his duties effectively without complete immunity.
“Without presidential immunity, it would be impossible for a president to properly function, putting the United States of America in great and everlasting danger!” Trump wrote in a post on Truth Social back in April.
In light of the Democrats’ lawfare strategy against Trump, a new precedent has been set that puts all future presidents at risk of criminal prosecution, and Trump even argued that Biden would face similar treatment when he leaves office.
“If they take away my presidential immunity, they take away crooked Joe Biden’s presidential immunity,” he said.
After oral arguments in April, many speculated that the justices leaned toward some measure of presidential immunity.
“I’m not concerned about this case, but I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives,” Gorsuch said during oral arguments. “We’re writing a rule for the ages.”
Indeed it is. It’s a pretty solid victory for Donald Trump.
