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Supreme Court crafts new doctrine of presidential immunity

Former President Donald Trump’s case remains unresolved

People protest outside the Supreme Court on Monday. Associated Press/Photo by Mariam Zuhaib

Supreme Court crafts new doctrine of presidential immunity

WASHINGTON—The Supreme Court delivered its final blockbuster case of this term on Monday morning. The justices determined in Trump v. United States that presidents carry absolute immunity for their official acts in office—but they dodged the question of whether former President Donald Trump will receive immunity in his pending federal criminal case over alleged election interference.

Television cameras lined the sidewalks outside the Supreme Court, outnumbering the handful of Trump supporters and opponents who had gathered for the immunity decision. Army veteran Michael O’Neil, from St. Louis, wore a sandwich board that read, “Voting for Trump.” He supported the majority opinion.

“I think the immunity decision is the correct one,” O’Neil told WORLD. “We don’t want people going after former presidents for doing their jobs.”

The court’s decision unblocks Trump’s pending case before the Washington, D.C., appellate court. But more broadly, the 6-3 ruling outlines the limits of the legal immunity presidents have while in office and beyond.

“The president enjoys no immunity for his unofficial acts, and not everything the president does is official,” U.S. Chief Justice John Roberts wrote in the court’s majority opinion. “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.”

The ruling leaves unanswered the question of whether Trump obstructed the peaceful transfer of power on Jan. 6, 2021, or whether his actions on the day of the U.S. Capitol riot counted as an “official act.” That question now returns to the lower court with some new guidelines. The majority opinion states a president makes an official act when they act “pursuant to ‘constitutional and statutory authority.’”

Although Trump hailed the decision as a victory, the former president still faces charges of obstruction of an official proceeding, conspiracy to obstruct an official proceeding, conspiracy to defraud the United States, and a conspiracy against the constitutional rights of voters. Together, the four counts could add up to 35 years behind bars.

Christopher Devine, an associate professor at the University of Dayton, said the ruling doesn’t necessarily mean Trump will escape conviction.

“It’s not total immunity for everything under the sun that a president can do,” Devine said. “What the Supreme Court is saying is that it makes a distinction between official acts of the president. This case is not over. This will go back to the lower courts to determine whether those things he’s being charged with were official acts or in some way unofficial or private.”

Clark Neily, senior vice president of legal affairs at the Cato Institute, said the majority opinion will allow special counsel Jack Smith to continue litigation but will also eliminate parts of the prosecution’s case. The justices stated that at least one of the four counts facing Trump would be considered a core constitutional act—not a personal one.

“Some counts in the indictment are just done with,” Neily said. “So for example, communications with Vice President [Mike] Pence, in which Donald Trump tried to persuade him to use his office to alter the outcome of the election, are going to be presumptively official acts.”

The conservatives on the Supreme Court often describe themselves as “textualists,” basing decisions on existing law. But no text in the Constitution deals with immunity for a president, either civil or criminal.

“In some sense, the court did break some ground here by saying that a former president presumptively cannot be prosecuted for official acts that they took in office,” Neily said. “It may be that people sort of assumed all along that that would probably be the case. So I do think this opinion is something of a watershed. It carves out a broader scope of presidential immunity than many people would have expected.”

The case could eventually return to the Supreme Court if lower courts can’t clearly answer the question of official versus unofficial acts.

“There’s always vigorous disagreement about what presidents do, but as far as whether their actions are actually criminal, that’s not something we have a lot of precedent for,” Devine said.

Ahead of the court’s decision, Rep. Byron Donalds, R-Fla., who is widely considered a candidate for Trump’s running mate, said he believes immunity is an essential component of the presidency.

“It’s not about President Trump. It’s about every president,” Donalds said. “It’s about the office. This is to protect the office of the presidency—protect official duties of President Obama, President Bush, President Biden.”

Other lawmakers expressed concern over what that immunity might mean—or how far it might extend. Rep. Jamie Raskin, D-Md., the ranking member of the House Oversight Committee, said he thinks past presidents have operated with a clear understanding of the limited nature of that immunity.

“The whole reason Gerald Ford pardoned Richard Nixon is because Richard Nixon could have been prosecuted,” Raskin said. “This has been the understanding for all of American history. It is only Donald Trump who has been making the argument that a president or an ex-president is somehow above the law.”

In her dissent, Justice Sonia Sotomayor wrote that the court’s decision didn’t go far enough to responsibly limit presidential immunity.

“Today’s decision to grant former presidents criminal immunity reshapes the institution of the presidency. It makes a mockery of the principle that no man is above the law,” Sotomayor wrote. “Under the majority’s rule, a president’s use of any official power for any purpose, even the most corrupt, is immune from prosecution. That is just as bad as it sounds.”

With Monday’s ruling, Trump’s legal team must continue arguing the immunity question in the U.S. Court of Appeals for the District of Columbia Circuit. The case centers on what role, if any, Trump played in causing the Jan. 6, 2021, riot at the U.S. Capitol. Even if the case eventually goes to trial, Neily says there’s a long road ahead.

“Bottom line, I think that the prospects for any criminal prosecution of Donald Trump proceeding before the election or even the inauguration this coming January are pretty close to zero at this point,” Neily said.

WORLD’s Catherine Gripp contributed to this report.

Leo Briceno

Leo is a WORLD politics reporter based in Washington, D.C. He’s a graduate of the World Journalism Institute and has a degree in political journalism from Patrick Henry College.


Carolina Lumetta

Carolina is a WORLD reporter and a graduate of the World Journalism Institute and Wheaton College. She resides in Washington, D.C.


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