The Supreme Court ruled 6-3 in Donald Trump’s favor in the presidential immunity case, complicating at least two prosecutions against the 45th president.
“Under our constitutional structure of separated powers, the nature of presidential power entitles a former president to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority,” Chief Justice John Roberts wrote in the high court’s majority opinion. “And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.”
The ruling, issued Monday, involves the federal prosecution of Trump for challenging the outcome of the 2020 presidential election, but it also could affect a case in Fulton County, Georgia, in which Trump faces charges of conspiracy to overturn the results of the race in the state.
The high court returned Trump’s federal election case to the lower trial court to determine what aspects of the special counsel Jack Smith’s indictment against Trump in the election case will stand. Specifically, the court ruled that Trump’s interaction with then acting Attorney General Jeffrey Rosen fell under the scope of presidential immunity from prosecution. Yet the court ruled that other interactions with executive branch officials such as Vice President Mike Pence and nonexecutive branch officials may or may not fall under presidential immunity and the lower court must adjudicate these questions.
Trump’s lawyers argued that the 45th president—and any president—has absolute immunity from prosecution for official acts pertaining to his office. In this case, Trump’s attorneys contended that he was acting in his official capacity as president—not simply as a candidate—in fighting what he believed was a dishonest election.
“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 asserted in the majority opinion. “But under our system of separated powers, the president may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts. That immunity applies equally to all occupants of the Oval Office.”
Justice Sonia Sotomayor wrote the dissent.
“Today’s decision to grant former presidents criminal immunity reshapes the institution of the presidency,” Sotomayor argued. “It makes a mockery of the principle, foundational to our Constitution and system of government, that no man is above the law.”
The high court’s ruling also comes after amid Trump’s conviction in New York over “hush money” paid to former porn actress Stormy Daniels—based on charges from before Trump was president. A second federal case in Florida, run by Smith, over the former president’s possession of classified documents regards alleged conduct after leaving office. These cases won’t likely be affected by the high court ruling.
Across four separate indictments, Trump faced a total of 91 state and federal charges.
The court specifically notes that Trump’s conversations 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.”
Among the most well-known post-2020 election controversies involved Trump attempting to pressure then-Vice President Mike Pence to stall or reverse a joint session of Congress from certifying Joe Biden’s Electoral College victory. The high court remanded the question of Trump’s immunity on this back to the district court to further clarify.
“Whenever the president and vice president discuss their official responsibilities, they engage in official conduct,” the majority says. “Presiding over the January 6 certification proceeding at which members of Congress count the electoral votes is a constitutional and statutory duty of the vice president.”
The murkier area dealt with Trump’s interaction with nonexecutive branch officials, the majority found. The indictment says Trump worked with coconspirators to develop an alternative slate of electors to obstruct the certification process. Trump’s team argued this was an official act to protect the proper administration of a federal election.
“Determining whose characterization may be correct, and with respect to which conduct, requires a fact-specific analysis of the indictment’s extensive and interrelated allegations,” the majority says. “The court accordingly remands to the district court to determine in the first instance whether Trump’s conduct in this area qualifies as official or unofficial.”
Trump’s attorneys argued that the only exception from presidential immunity would be if Trump were impeached and removed from office, in which case he then could be charged with the offense in a separate criminal case.
That’s because what is known as the Constitution’s impeachment judgment clause stipulates that a president “convicted” by the Senate in an impeachment trial is “subject to Indictment, Trial, Judgment, and Punishment, according to Law.” Although the House impeached Trump a second time shortly before he left office in 2021, the Senate acquitted Trump in a trial after he left office.
During questioning, Justice Amy Coney Barrett had suggested that the solution might warrant a legal test to set parameters for what is a private and what is an official act.
In oral arguments April 25 before the nine justices, Michael Dreeben argued the case on behalf of Smith, the government’s special counsel, while lawyer John Sauer argued on behalf of Trump.
Sauer argued that “there can be no presidency as we know it” without immunity, since presidents would be reluctant to carry out their duties for fear of prosecution by a subsequent administration.
The immunity is based on the Constitution’s executive vesting clause and the corresponding principle of separation of powers, he said.
The Justice Department, which appointed Smith as special counsel, argued that a president isn’t entitled to immunity from prosecution even for official actions. During oral arguments, however, Dreeben qualified the argument by saying presidents have some “special protection” and could raise it as a defense if prosecuted.
The Supreme Court ruled in its 1982 Nixon v. Fitzgerald decision that presidents have absolute immunity in civil cases for official actions taken as president.
In February, a three-judge panel of the U.S. Court of Appeals for the District of Columbia rejected Trump’s immunity claim.
Separately, the high court is considering a case involving defendants charged in the Jan. 6 Capitol riot. At issue is whether a federal statute used to prosecute them may be used under a broad reading or instead was designed to cover narrower acts.
