Following 123 days of delay in the pre-trial stage of the case regarding former President Donald Trump’s attempt to overturn his 2020 election loss to President Joe Biden, the U.S. Supreme Court has issued a ruling on Trump’s claims of absolute immunity, granting him a huge win and creating an unprecedented burden for prosecutors.
The Court found that a president is presumed to have immunity for acts that fall within their office’s authority, and should have wide leverage to argue that their actions as president were consistent with those protections. While the Court stated that such standards wouldn’t apply to non-official acts, the ruling gives tremendous leeway for future presidents to facilitate illegal actions without criminal consequence, so long as they’re done using constitutionally granted tools within the executive branch.
The ruling will undoubtedly give Trump the benefit of the doubt in his case relating to the attack on the U.S. Capitol building and his campaign’s attempts to overturn Electoral College votes using a slate of fake electors in numerous states. Prosecutors will have a greater burden to prove in the case that Trump’s actions were in no way related to his duties as president.
Per Chief Justice John Roberts, who authored the majority opinion:
The system of separated powers designed by the Framers has always demanded an energetic, independent Executive. 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 President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law,” Roberts added. “But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution. And the system of separated powers designed by the Framers has always demanded an energetic, independent Executive.”
“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,” Roberts went on.
Roberts attempted to defend the conservative bloc’s ruling by citing George Washington, quoting his concerns, in his outgoing speech as a departing president, of a “frightful despotism” of “alternate domination of one faction over another.” Roberts claimed that Washington’s fears could materialize without recognized immunity for presidents utilizing their executive branch powers.
However, it’s hard to imagine how the outcome described by the first president would be prevented by granting future presidents expansive and never-before-seen protections after they leave office. Indeed, in public statements over the past year, Trump has promised “revenge” against his adversaries if he’s elected in November, which he would be able to pursue without criminal consequence under the standard created on Monday.
The ruling will force the case to return to the district court level, where prosecutors can still pursue charges. They must convince Judge Tanya Chutkan, who initially sided with the Justice Department’s arguments, that Trump’s actions on January 6, 2021 — and his attempt to use a slate of fake electors to upend the Electoral College — fell outside of his presidential duties.
The decision was made along partisan lines, with the six conservative justices siding with the opinion. All three liberal bloc members dissented, with Justice Sonia Sotomayor authoring their views.
“Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency,” Sotomayor wrote. “It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.”
The dissenting justice added:
The Court now confronts a question it has never had to answer in the Nation’s history: Whether a former President enjoys immunity from federal criminal prosecution. The majority thinks he should, and so it invents an atextual, ahistorical, and unjustifiable immunity that puts the President above the law.
Sotomayor condemned the Court’s conservative bloc for essentially stating that a president cannot be prosecuted if they’re using their constitutionally granted powers.
“Whether described as presumptive or absolute, 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, and it is baseless,” Sotomayor said.
“The main takeaway of today’s decision is that all of a President’s official acts, defined without regard to motive or intent, are entitled to immunity,” Sotomayor added. Quoting precedent established by the conservative justices in Dobbs v. Jackson Women’s Health Organization, she went on, “This official-acts immunity has ‘no firm grounding in constitutional text, history, or precedent.'”
Sotomayor also took issue with Roberts’s claims that the conservatives’ ruling was backed by history, noting that several U.S. founders were opposed to granting such expansive powers to the president. Citing papers written by James Madison, Alexander Hamilton and others, Sotomayor stated:
This historical evidence reinforces that, from the very beginning, the presumption in this Nation has always been that no man is free to flout the criminal law. The majority fails to recognize or grapple with the lack of historical evidence for its new immunity. With nothing on its side of the ledger, the most the majority can do is claim that the historical evidence is a wash.
Sotomayor concluded her dissent by adding, “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. 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. With fear for our democracy, I dissent,” Sotomayor wrote.
Legal experts on social media agreed with Sotomayor’s dire warnings about the conservative bloc’s opinion.
“The Supreme Court just fundamentally altered the structure and nature of democracy in America. It awards the president the measure of power and immunity that is much, much closer to a king or emperor than an elected official,” said Slate senior writer Mark Joseph Stern.
“Welp, that’s all folks. The President is immune from prosecution so long as he says he committed crimes as part of his ‘official’ duties,” said The Nation’s Elie Mystal. “So ends the part of the American experience where our leaders were bound by the rule of law. Thanks for playing.”
The Supreme Court originally stalled the case in February, agreeing at that time to hear an appeal from Trump’s lawyers over claims that his “presidential immunity” should have protected him from being charged in the first place. That argument rested on the dubious premise that Trump had been acting in his capacity as president during the January 6, 2021, attack on the U.S. Capitol, and that his attempt to usurp the Electoral College process through the use of fake electors was somehow a legitimate part of his job as then-head of the executive branch.
The Supreme Court did not rule on Monday whether Trump’s actions were official. But their decision will return the case to the lower court, where those arguments will be made. Even if the lower court determines that the former president wasn’t acting in an official capacity when he ordered the mob of his loyalists (some of whom he knew were armed) to the Capitol, Trump can appeal the ruling to the High Court, which will have the final say on whether or not his actions were official.
Special counsel Jack Smith and the Department of Justice (DOJ) have charged Trump with four counts relating to his actions leading to, and on, January 6. Specifically, those charges are:
- Conspiracy to defraud the United States;
- Conspiracy to obstruct an official proceeding;
- Obstruction of and attempt to obstruct an official proceeding; and
- Conspiracy against rights, alleging that Trump’s actions sought to disenfranchise voters across the country.
On January 6, 2021, Congress was set to certify the election results when they were interrupted by a mob of Trump loyalists descending upon the Capitol building. In subsequent interviews regarding charges against the rioters, more than 200 of the rioters themselves said that they believed that Trump had asked them to attack Congress.
Earlier in the day, Trump had given an incendiary speech to the crowd, peddling false claims that the election had been stolen and encouraging his loyalists not to accept the results of the race.
“We will never give up. We will never concede, it doesn’t happen. You don’t concede when there’s theft involved,” Trump said in his January 6 “Stop the Steal” speech near the White House, adding to his followers that they would “never take back our country with weakness.”
For hours after the raid on the Capitol began, Trump did nothing to stop the attack, sending out the occasional tweet on Twitter but refusing to outright call off the mob. During this time, Trump was gleefully watching the events unfold on television, according to statements by his former staffers.
The attack resulted in scores of injuries, many of them serious, and a handful of deaths, including that of a Trump supporter who was shot by Capitol Police, and four officers who have died by suicide following the melee.
The charges Trump faces also relate to his campaign’s attempt to influence the Electoral College, by coordinating, at several state capitols across the country, slates of fake electors, who signed on to documents asserting that theirs were the rightful votes. In some cases, these individuals have asserted that the Trump campaign had tricked them into doing so.
The plan was to have these electors’ votes transported to Washington D.C. in order for them to be counted alongside the legitimate ones. By doing so, then-Vice President Mike Pence could, according to the plan by Trump’s lawyers, decide which votes to count, or failing that, announce that the confusion regarding two sets of ballots from a single state would render neither one valid for the time being.
The scheme came remarkably close to succeeding, with Sen. Ron Johnson (R-Wisconsin), who represented one of the states where fake electors’ votes were collected, attempting to coordinate a way for Pence’s office to collect them.
Pence ultimately refused to go along with the plan, and counted only the legitimate slate of electors, resulting in Biden’s win. Multiple times throughout the day, however, Republican lawmakers sought to disrupt the vote by challenging states’ electors, only to fail each time.
In the midst of this process, Trump loyalists who had heard his speech earlier that day breached the building, forcing an evacuation of lawmakers and the disruption of the count. The counting process resumed later on and was finalized early the next morning.
Author Jeff Sharlet said that the Supreme Court’s ruling is just as dangerous for democracy as Trump’s attempts to usurp the election.
“Slow. Motion. Coup. Today is as much of a of blow to democracy — on you and me and everyone — as the violent assault of January 6,” he wrote on X.
“What Donald Trump and the @GOP failed to achieve on January 6, they finally achieved through the federal courts,” political observer and Democratic strategist Max Burns said.