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SCOTUS Weighs in on Presidential Immunity in Trump v. United States

July 1, 2024

The U.S. Supreme Court has issued another bombshell ruling in a term seemingly full of them, this time regarding former President Donald Trump. On Monday, the court published a 6-3 decision in the case Trump v. United States, stemming from indictments leveled against the former president for the events at the Capitol on January 6, 2021. The court has long been expected to deliver an opinion on Trump’s claims of presidential immunity from prosecution, holding in its ruling that the president has absolute immunity regarding his core constitutional duties and presumed immunity regarding his official acts.

“Trump argued that all of the indictment’s allegations fell within the core of his official duties,” Chief Justice John Roberts wrote in his opinion for the majority. “And he contended that a President has absolute immunity from criminal prosecution for actions performed within the outer perimeter of his official responsibilities, to ensure that he can undertake the especially sensitive duties of his office with bold and unhesitating action.”

The Supreme Court rejected the prior ruling of the Washington, D.C. Circuit Court that the “separation of powers doctrine, as expounded in Marbury and its progeny, necessarily permits the Judiciary to oversee the federal criminal prosecution of a former President for his official acts because the fact of the prosecution means that the former President has allegedly acted in defiance of the Congress’s laws.” Roberts wrote that the Supreme Court sought to answer the question, “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”

The court observed that the case was a novelty: “This case is the first criminal prosecution in our Nation’s history of a former President for actions taken during his Presidency. We are called upon to consider whether and under what circumstances such a prosecution may proceed.” Roberts noted that the court was examining not whether the power (the presidency, in this case) was valid in the instance in which it was invoked (presidential immunity, in this case), but instead what the justice called the “enduring consequences upon the balanced power structure of our Republic,” citing a prior Supreme Court case.

In fact, Roberts noted that “unlike the political branches and the public at large, we cannot afford to fixate exclusively, or even primarily, on present exigencies.” He continued, “In a case like this one, focusing on ‘transient results’ may have profound consequences for the separation of powers and for the future of our Republic.”

“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,” the Court ruled. “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.” Immunity granted for official actions outside the scope of the president’s exercise of his core constitutional powers, the court clarified, is presumptive. However, the court further explained that it need not be decided at present whether Trump is shielded by absolute or presumptive immunity.

Both forms of immunity, as the Supreme Court explained in Youngstown Sheet & Tube Co. v. Sawyer in 1952 and Nixon v. Fitzgerald in 1982, are intended to allow the president to perform his duties without being “diverted by proceedings that might render him ‘unduly cautious in the discharge of his official duties…’” These forms of immunity are only extended to the president’s official acts. His unofficial acts, the court explained, are not protected by any form of immunity. Therefore, Roberts wrote, “The first step in deciding whether a former President is entitled to immunity from a particular prosecution is to distinguish his official from unofficial actions. In this case, no court thus far has drawn that distinction, in general or with respect to the conduct alleged in particular.”

Examining the allegations enumerated in the indictment, the Supreme Court ruled that Trump’s discussions with Justice Department officials would be classified as absolutely immune from prosecution, falling under the exercise of his core constitutional duties. The court clarified that Trump’s discussions with his vice president, Mike Pence, would be classified as presumptively immune from prosecution and it would fall to prosecutors to “rebut the presumption of immunity.” That particular aspect, therefore, was remanded to the district court “to assess in the first instance whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding would pose any dangers of intrusion on the authority and functions of the Executive Branch.”

The Supreme Court noted that Trump argues that the remainder of the indictment’s allegations pertain to his official acts as president, while the prosecutors claim he exceeded his authority. The court remanded these allegations to the district court, too, to be subjected to a thorough fact-based analysis to determine whether or not those actions were official or unofficial. The court warned that there may, eventually, not be enough basis remaining for an indictment to proceed at all.

While Roberts’s opinion was joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, Thomas penned his own concurring opinion “highlight[ing] another way in which this prosecution may violate our constitutional structure.” He wrote that Special Prosecutor Jack Smith’s appointment may have been unconstitutional. “In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States. But, I am not sure that any office for the Special Counsel has been ‘established by Law,’ as the Constitution requires,” Thomas wrote.

“By requiring that Congress create federal offices ‘by Law,’ the Constitution imposes an important check against the President — he cannot create offices at his pleasure,” the justice continued. “If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President. If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people.”

Justice Sonia Sotomayor was joined in a dissenting opinion, essentially contradicting the majority’s reasoning, by Justices Elena Kagan and Ketanji Brown Jackson. “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,” Sotomayor wrote. “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. With fear for our democracy, I dissent.” Jackson also wrote a separate dissenting opinion.

S.A. McCarthy serves as a news writer at The Washington Stand.