Reuters (“US Supreme Court rules Trump has immunity for official, not private acts“):
The U.S. Supreme Court found on Monday that Donald Trump cannot be prosecuted for any actions that were within his constitutional powers as president, but can for private acts, in a landmark ruling recognizing for the first time any form of presidential immunity from prosecution.
The justices, in a 6-3 ruling written by Chief Justice John Roberts, threw out a lower court’s decision that had rejected Trump’s claim of immunity from federal criminal charges involving his efforts to undo his 2020 election loss to Joe Biden. The six conservative justices were in the majority. Its three liberals dissented.
Trump is the Republican candidate challenging Biden, a Democrat, in the Nov. 5 U.S. election in a 2020 rematch. The Supreme Court’s slow handling of the case, coupled with its decision to return key questions about the scope of Trump’s immunity to the lower courts to resolve, make it improbable he will be tried on the election subversion charges brought by Special Counsel Jack Smith charges before the election.
“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,” Roberts wrote.Immunity for former presidents is “absolute” with respect to their “core constitutional powers,” Roberts wrote, and a former president has “at least a presumptive immunity” for “acts within the outer perimeter of his official responsibility,” meaning that prosecutors face a high legal bar to overcome that presumption.
Roberts cited the need for presidents to “execute the duties of his office fearlessly and fairly” without the threat of prosecution.
“As for a president’s unofficial acts,” Roberts added, “there is no immunity.”
Trump hailed the ruling in a social media post, writing: “BIG WIN FOR OUR CONSTITUTION AND DEMOCRACY. PROUD TO BE AN AMERICAN!”
The court analyzed four categories of conduct contained in Trump’s indictment. They are: his discussions with Justice Department officials following the 2020 election; his alleged pressure on then-Vice President Mike Pence to block congressional certification of Biden’s election win; his alleged role in assembling fake pro-Trump electors to be used in the certification process; and his conduct related to the Jan. 6, 2021, attack on the U.S. Capitol by his supporters.
The court found Trump was absolutely immune for conversations with Justice Department officials. Trump is also “presumptively immune” regarding his interactions with Pence, it decided, but returned that and the two other categories to lower courts to determine whether Trump has immunity.
[…]
Justice Sonia Sotomayor, joined by fellow liberal Justices Elena Kagan and Ketanji Brown Jackson, delivered a sharply worded dissent, saying the ruling “makes a mockery of the principle, foundational to our Constitution and system of government, that no man is above the law.”
Sotomayor added: “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.”
Sotomayor said the ruling “reshapes the institution of the presidency.”
UCLA School of Law professor Rick Hasen, a critic of Trump’s efforts to overturn his election defeat, said: “The Supreme Court has put out a fact-intensive test on the boundaries of the president’s immunity – with a huge thumb on the scale favoring the president’s immunity – in a way that will surely push this case past the election.”
“Sorting out the court’s opinion and how it applies is going to take a while,” Georgetown University law professor Erica Hashimoto added. “No chance of a pre-election trial.”
NPR’s Nina Totenberg (“Supreme Court says Trump has absolute immunity for core acts only“):
The U.S. Supreme Court, in a 6-3 decision along ideological lines, ruled that a former president has absolute immunity for his core constitutional powers — and is entitled to a presumption of immunity for his official acts, but lacks immunity for unofficial acts. But at the same time, the court sent the case back to the trial judge to determine which, if any of former President Donald Trump’s actions, were part of his official duties and thus were protected from prosecution.
[…]
Roberts acknowledged that the case was unprecedented.
“No court has thus far considered how to distinguish between official and unofficial acts,” he wrote, while chiding the lower courts for rendering “their decisions on a highly expedited basis.” He said the lower courts “did not analyze the conduct alleged in the indictment to decide which of it should be categorized as official and which unofficial.”
Roberts wrote that “Trump asserts a far broader immunity than the limited one we have recognized,” but the opinion also undermined some of the key charges against the former president.
“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,” he wrote. In other words, “Trump is … absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.”
Monday’s decision to send the case back to trial Judge Tanya Chutkan all but guarantees that there will be no Trump trial on the election interference charges for months. Even before the immunity case, Judge Chutkan indicated that trial preparations would likely take three months. Now, she will also have to decide which of the charges in the Trump indictment should remain and which involve official acts that under the Supreme Court ruling are protected from prosecution.
[…]
All of this stands in stark contrast to the way the court has handled other presidential power cases. In 1974, the justices ruled against President Richard Nixon just 16 days after hearing oral arguments. The vote was 8-0, with Justice William Rehnquist recusing himself because of his close ties to some of the officials accused of wrongdoing in the case. And this year, the court took less than a month to rule unanimously that states could not bar Trump from the ballot.
SCOTUSBlog’s Amy Howe (“Justices rule Trump has some immunity from prosecution“):
In a historic decision, a divided Supreme Court on Monday ruled that former presidents can never be prosecuted for actions relating to the core powers of their office, and that there is at least a presumption that they have immunity for their official acts more broadly.
The decision left open the possibility that the charges brought against former President Donald Trump by Special Counsel Jack Smith – alleging that Trump conspired to overturn the results of the 2020 election – can still go forward to the extent that the charges are based on his private conduct, rather than his official acts.
[…]
In a ruling on the last day before the Supreme Court’s summer recess, and just over two months after the oral argument, a majority of the court rejected the D.C. Circuit’s reasoning. As an initial matter, Roberts explained in his 43-page ruling, presidents have absolute immunity for their official acts when those acts relate to the core powers granted to them by the Constitution – for example, the power to issue pardons, veto legislation, recognize ambassadors, and make appointments.
That absolute immunity does not extend to the president’s other official acts, however. In those cases, Roberts reasoned, a president cannot be charged unless, at the very least, prosecutors can show that bringing such charges would not threaten the power and functioning of the executive branch. And there is no immunity for a president’s unofficial acts.
Determining which acts are official and which are unofficial “can be difficult,” Roberts conceded. He emphasized that the immunity that the court recognizes in its ruling on Monday takes a broad view of what constitutes a president’s “official responsibilities,” “covering actions so long as they are not manifestly or palpably beyond his authority.” In conducting the official/unofficial inquiry, Roberts added, courts cannot consider the president’s motives, nor can they designate an act as unofficial simply because it allegedly violates the law.
[…]
Roberts pushed back against the dissent by Sotomayor and a separate one by Justice Ketanji Brown Jackson, describing them as striking “a chilling tone of doom that is wholly disproportionate to what the Court actually does today.” He portrayed the ruling as a relative narrow one that decides only “that immunity extends to official discussions between the President and his Attorney General, and then remand to the lower courts” for them to determine whether the other acts alleged in the indictment are entitled to immunity.
Like my co-blogger Steven Taylor, I’ll likely have more reaction to this after I’ve had a chance to digest the opinions and the legal analysis of those more expert than me in that endeavor. My initial reactions, though, are twofold.
First and foremost, given that this is very much the outcome I expected, I continue to believe (as laid out in more detail in my September post “SCOTUS Denies Fast Track of Trump Immunity Claim“) that Roberts and company did the Republic a gross disservice in not expediting this. Relatedly, while I agree with the broad principles laid out by the majority, the exigency of this case demanded that they rule on the merits rather than remanding this back to the lower court, guaranteeing yet more delays as Trump’s lawyers appeal any finding that given actions do not fall under the entitlement of immunity.
Second, I both agree and disagree with Sotomayor and Totenberg that this is unprecedented. As noted in yet another December post (“Supreme Court to Hear Trump Immunity Case“)
We’re in uncharted waters here. Trump is facing criminal charges as a private citizen for his actions while President. That has never happened before.
The presumption has long been that impeachment and removal from office was the remedy for “high crimes and misdemeanors” in office. But, surely, there has to be some recourse beyond that in extreme cases. While impeachment and removal is a sufficient price for ordinary malfeasance, it would not serve justice in the case of, say, murder or rape.
Because this is a criminal trial rather than a civil one, I’m not sure to what extent Nixon v Fitzgerald is the controlling precedent here. It makes sense to extend maximum protection to Presidents, and by extension former Presidents, for official actions to free them to conduct the public’s business as they see fit. So, “the acts within the ‘outer perimeter’ of his official responsibility” test is a good one. But that’s far too expansive for criminal acts. Were a President to murder the Speaker of the House in a fit of rage during budget negotiations, the fact that he was conducting government business would surely not convey immunity.
So, yes, the ruling is unprecedented because we’ve simply never have a sitting President (or, indeed, a former President) charged with a crime before Trump. But, no, the basic contours of this opinion are well within the “official responsibility” ambit of prior cases. It’s not clear to me from the cursory reports I’ve seen so far whether or how far the envelope was pushed. But, offhand, it strikes me as perfectly reasonable that a sitting President’s conversations with his cabinet a privileged acts for which impeachment is the remedy.
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Author: James Joyner
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