Supreme Court Justice Sonia Sotomayor speaks during a panel discussion at the winter meeting of the National Governors Association, Friday, Feb. 23, 2024, in Washington. (AP Photo/Mark Schiefelbein)
The U.S. Supreme Court went on summer vacation on Monday, just three days before the 4th of July, with a major nod toward imbuing the U.S. presidency with the trappings of divine-like, imperial power.
In a molten lead dissent, Justice Sonia Sotomayor accuses the majority of generally diminishing small-R “republican” values by creating a regime where “the President is now a king above the law.” And, on the specific facts of the case where former President Donald Trump was gifted broad grants of immunity, the dissent accuses her conservative colleagues of “judicial activism, not judicial restraint.”
“With fear for our democracy, I dissent,” Sotomayor signs off — eschewing the norm of “respectfully” disagreeing with the outcome. A secondary dissent by Justice Ketanji Brown Jackson also avoids the pretense of respecting the decision in Trump v. United States.
What comes before in Sotomayor’s complaint should leave no one guessing about the level of discord the result has engendered.
“Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency,” Sotomayor begins. “It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. 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.”
The 6-3 opinion fashions itself as equal parts necessary and cautious.
Penned by Chief Justice John Roberts, the nation’s high court stresses the need to protect U.S. presidents from “the peculiar public opprobrium that attaches to criminal proceedings” because they might “distort Presidential decisionmaking.” But, Roberts says, the immunities created by the opinion only apply to official acts.
The key ruling in the case reads as follows:
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. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity. At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient.
“The majority purports to keep us in suspense as to whether this immunity is absolute or presumptive, but it quickly gives up the game,” the dissent reads. “It explains that, ‘[a]t a minimum, the President must … be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no dangers of intrusion on the authority and functions of the Executive Branch.’ No dangers, none at all. It is hard to imagine a criminal prosecution for a President’s official acts that would pose no dangers of intrusion on Presidential authority in the majority’s eyes.”
More Law&Crime coverage: Supreme Court rules Trump immune in ‘improper’ Jeffrey Clark scheme as majority takes hacksaw to Jan. 6 case
Sotomayor accuses the majority of various bits of subterfuge.
One accusation leveled by the Barack Obama-appointed jurist is that the Roberts Court is intentionally muddying the waters so the majority’s opinion appears more reasonable and grounded than it really is. To this end, she argues the distinction between official and unofficial acts is “unremarkable” and unnecessary to note because no one, not even Trump’s own lawyers, argued the president had immunity for unofficial acts anyway. But, Sotomayor insists, the distinction is being cleverly used to enlarge the scope of the immunity granted to presidents.
As previously mentioned, the court suggested its opinion was also somewhat cautious. To this end, the majority remanded the case to the district court in order for the judge to determine which parts of the indictment special counsel Jack Smith will be able to salvage — based on several distinctions and evidentiary concerns in line with the majority’s reasoning. The threshold inquiry for a court, the majority say, means distinguishing between official and unofficial acts.
The majority has strict guidelines for this forthcoming inquiry.
“In dividing official from unofficial conduct, courts may not inquire into the President’s motives,” Roberts writes in a section explicitly described as guidance for reviewing courts. “Such an inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose.”
Sotomayor says Roberts has crafted a framework that effectively results in a rhetorical distinction with no real-world difference.
“It is one thing to say that motive is irrelevant to questions regarding the scope of civil liability, but it is quite another to make it irrelevant to questions regarding criminal liability,” the dissent reads. “Under that rule, any use of official power for any purpose, even the most corrupt purpose indicated by objective evidence of the most corrupt motives and intent, remains official and immune. Under the majority’s test, if it can be called a test, the category of Presidential action that can be deemed ‘unofficial’ is destined to be vanishingly small.”
More Law&Crime coverage: Justice Thomas just gifted Judge Cannon a reason to blow up Trump’s Mar-a-Lago prosecution, another bad sign for Jack Smith
Finally, the dissent notes, the majority opinion also creates an evidentiary rule that admittedly strengthens presidential immunity.
Again, the majority opinion, at length:
The essence of immunity “is its possessor’s entitlement not to have to answer for his conduct” in court. Presidents therefore cannot be indicted based on conduct for which they are immune from prosecution. As we have explained, the indictment here alleges at least some such conduct. On remand, the District Court must carefully analyze the indictment’s remaining allegations to determine whether they too involve conduct for which a President must be immune from prosecution. And the parties and the District Court must ensure that sufficient allegations support the indictment’s charges without such conduct.
…
If official conduct for which the President is immune may be scrutinized to help secure his conviction, even on charges that purport to be based only on his unofficial conduct, the “intended effect” of immunity would be defeated. The President’s immune conduct would be subject to examination by a jury on the basis of generally applicable criminal laws. Use of evidence about such conduct, even when an indictment alleges only unofficial conduct, would thereby heighten the prospect that the President’s official decisionmaking will be distorted.
Sotomayor describes the exhortation to courts and prosecutors as a “nonsensical evidentiary rule” that “has no basis in law.”
The dissent uses an extreme example to argue its point:
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). Under the majority’s rule, the murder indictment could include no allegation of the President’s public admission of premeditated intent to support the mens rea of murder. That is a strange result, to say the least.
The dissent also accuses the majority of a feint — disagreeing with one of Trump’s legal theories about immunity in order to make choices that “completely insulate Presidents from criminal liability.”
Roberts rejected Trump’s argument that a president must be impeached by the House and convicted by the Senate in order for a criminal indictment to be filed. In rejecting this, the majority says: “Trump asserts a far broader immunity than the limited one we have recognized.”
“If anything, the opposite is true,” Sotomayor retorts. “Inherent in Trump’s Impeachment Judgment Clause argument is the idea that a former President who was impeached in the House and convicted in the Senate for crimes involving his official acts could then be prosecuted in court for those acts. By extinguishing that path to overcoming immunity, however nonsensical it might be, the majority arrives at an official-acts immunity even more expansive than the one Trump argued for.”
Sotomayor points to one seemingly illogical outcome of the majority’s broad grant of post-presidential immunity.
“The majority seems to think that allowing former Presidents to escape accountability for breaking the law while disabling the current Executive from prosecuting such violations somehow respects the independence of the Executive,” the dissent reads. “It does not. Rather, it diminishes that independence, exalting occupants of the office over the office itself. There is a twisted irony in saying, as the majority does, that the person charged with ‘tak[ing] Care that the Laws be faithfully executed’ can break them with impunity.”
While mostly tackling the majority’s analysis head-on, the dissent also laundry lists a parade of horribles that might result — including prospective domestic coups d’etat engineered by the president, domestic political assassinations ordered by the president, and bribes accepted in exchange for a presidential pardon.
“Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law,” the dissent concludes. “Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop.”
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