All six of the Supreme Court’s conservative justices ruled Monday that the president is entitled to absolute immunity for official acts related to the core responsibilities of the presidency, such as pardoning, granting foreign recognition, and removing appointed officials. Moreover, the president is entitled to presumed immunity for official acts unrelated to those core responsibilities. This presumption can only be overturned if prosecutors can show that holding the president liable would not impede the functioning of the executive branch. As Chief Justice John G. Roberts Jr. put it in his Supreme Court opinion, this would not prevent the president from taking “bold and bold actions” that are essential to the job. He would not be immune from liability for unofficial or personal acts. But that is little comfort. It’s unseemly for a commander in chief to embezzle money or falsify business records to hide an affair, but these are not a threat to democracy.
The immediate impact has to do with the timeline of the Trump trial. The Supreme Court has instructed U.S. District Judge Tanya S. Chutkan, who is overseeing Trump’s election interference case, to determine which of the charges in the Justice Department’s indictment involve official conduct, which involve non-official conduct, and which constitute a legitimate basis for prosecuting the former president. Even if she moves quickly, Trump could still be held accountable for his actions. There is an opportunity to appeal If you appeal to the circuit court and lose the appeal, you can ask the Supreme Court to review the case. Also.
The Supreme Court could have resolved these issues itself this week, but instead they ensured that the case would remain in limbo indefinitely, which suits Trump, who wants to delay a decision until he is president again, at which point he will order the Justice Department to drop the charges.
More importantly, Trump won a substantial victory, as would any president or presidential candidate who aspires to abuse his power. The court explicitly noted some of Smith’s indictments. For example, Trump’s efforts to pressure the Department of Justice to investigate alleged voter fraud “can easily be classified as official conduct.” Meanwhile, his conversations with then-Vice President Mike Pence pressuring him to invalidate the results of the 2020 election occupy more murky territory. His speech on the White House Ellipse urging his supporters to march to the Capitol could easily have been clearly rigged. united nationsIt’s an official act, but until the court rules, we can only speculate.
Another challenge for prosecutors is that the ruling (the only significant point on which Justice Amy Coney Barrett disagreed with her conservative colleagues) restricts the use of evidence related to official duties in united nationsOfficial conduct. This is just one example of how troublingly broad the Supreme Court’s standard for presidential immunity is. By declaring motive irrelevant in assessing a president’s criminal responsibility, the majority invited the question of whether all manner of egregious transgressions were now fairly covered.
The minority listed some of them: “Would you order Navy SEAL Unit 6 to assassinate a political opponent?” Justice Sotomayor asked. “Immunity,” she answered. “Plan a military coup to stay in power? Immunity. Accept a bribe in exchange for a pardon? Immunity. Immunity, immunity, immunity.” Justice Sotomayor declared that the ruling makes the president “above the law.”
So was Richard M. Nixon right when he said, “If the president does it, it’s not illegal?” Well, not necessarily. Significant caveats aside, the sky isn’t falling, even if a significant chunk of it is missing. Former presidents can still be punished for official acts unrelated to the president’s core responsibilities, provided prosecutors can convincingly argue that the punishment would not interfere with an active executive branch. Those who acted wrongfully on behalf of the president, such as SEAL Team Six in this hypothetical scenario, could be held criminally liable for their actions. And courts could continue to order the executive branch to stop improper activity, as they regularly do, regardless of whether the president is incarcerated after leaving office for wrongdoing.
So it’s up to the courts, including the nation’s highest court, to make sure the nightmare scenario imagined by critics doesn’t come true. The problem is that this week’s decision is encouraging the president to push the envelope.
