The Supreme Court rejected former President Donald Trump’s claim of absolute immunity from prosecution, ruling that while a former president is immune from prosecution for their official acts, they are not immune from unofficial acts.
Monday's historic 6-3 ruling doesn't answer the question of what is an official or unofficial act. Instead, the court kicks the question back to the lower courts to figure out precisely how to apply the decision to Trump's case.
Writing for the majority, Chief Justice John Roberts writes that "Trump asserts a far broader immunity than the limited one we have recognized."
Roberts was joined by the other five conservative justices. The three liberal justices dissented.
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“Today’s decision to grant former presidents criminal immunity reshapes the institution of the presidency. It makes a mockery of the principle, foundational to our Constitution and system of government, that no man is above the law,” Justice Sonia Sotomayor wrote in a scathing dissent.
Sotomayor, who read a summary of her dissent aloud in the courtroom, said the protection afforded presidents by the court "is just as bad as it sounds, and it is baseless.”
The outcome means additional delay before Trump could face trial in the case brought by special counsel Jack Smith, all but ending prospects the former president could be tried before the November election.
If Trump’s Washington trial does not take place before the 2024 election and he is not given another four years in the White House, he presumably would stand trial soon thereafter.
But if he wins, he could appoint an attorney general who would seek the dismissal of this case and the other federal prosecution he faces. He could also attempt to pardon himself if he reclaims the White House.
The case stems from Trump’s attempts to have charges against him dismissed. Lower courts have found he cannot claim immunity for actions that, prosecutors say, illegally sought to interfere with the election results.
The presumptive Republican presidential nominee has been charged in federal court in Washington with conspiring to overturn the 2020 election, one of three criminal cases he is still facing. Earlier this month, Trump was convicted in New York of 34 counts of falsifying business records arising from what prosecutors said was an attempt to cover up a hush money payment to porn actor Stormy Daniels just before the 2016 presidential election.
During oral arguments earlier this year, a majority of the justices did not appear to embrace the claim of absolute immunity that would stop special counsel Jack Smith’s prosecution of Trump on charges he conspired to overturn his 2020 election loss to Democrat Joe Biden. However, several of the conservative justices indicated they could limit when former presidents might be prosecuted, suggesting that the case could be sent back to lower courts before any trial could begin.
Trump supporters, critics respond to immunity case ruling outside Supreme Court
Trump lawyer D. John Sauer argued that former presidents are entitled to absolute immunity for their official acts. Otherwise, he said, politically motivated prosecutions of former occupants of the Oval Office would become routine and presidents couldn’t function as the commander in chief if they had to worry about criminal charges.
Lower courts have rejected those arguments, including a unanimous three-judge panel on an appeals court in Washington, D.C.
Several justices drilled down on trying to come up with a definition of what constituted an official act, and whether charges based on one should be thrown out.
Justice Elena Kagan at one pointed wondered whether a former president could escape prosecution even if he ordered a coup or sold nuclear secrets. Sauer said prosecutions might not be allowed if those were determined to be official acts.
Roberts conjured up a president being indicted for receiving a bribe in exchange for an ambassadorial appointment.
How could the indictment go forward if prosecutors had to remove the official act, the appointment? “That’s like a one-legged stool, right?” Roberts asked.
Smith’s team says the men who wrote Constitution never intended for presidents to be above the law and that, in any event, the acts Trump is charged with — including participating in a scheme to enlist fake electors in battleground states won by Biden — aren’t in any way part of a president’s official duties.
Nearly four years ago, all nine justices rejected Trump’s claim of absolute immunity from a district attorney’s subpoena for his financial records. That case played out during Trump’s presidency and involved a criminal investigation, but no charges.
Among the controversies surrounding the case is the presence of Justice Clarence Thomas who has ignored calls to step aside from the case because his wife, Ginni Thomas, urged the reversal of the 2020 election results and then attended the rally that preceded the Capitol riot.
Justice Samuel Alito said there was no reason for him to step aside from the cases following reports by The New York Times that flags similar to those carried by the Jan. 6 rioters flew above his homes in Virginia and on the New Jersey shore. His wife, Martha-Ann Alito, was responsible for flying both the inverted American flag in January 2021 and the “Appeal to Heaven” banner in the summer of 2023, he said in letters to Democratic lawmakers responding to their recusal demands.
