Supreme Court says Trump is partly shielded from prosecution

WASHINGTON — The Supreme Court ruled Monday that former President Donald Trump is entitled to substantial immunity from prosecution on charges of trying to overturn the last election, a blockbuster decision in the heat of the 2024 campaign that vastly expanded presidential power.

The vote was 6-3, dividing along partisan lines. Its immediate practical effect will be to further complicate the case against Trump, with the chances that it will go before a jury before the election now vanishingly remote and the charges against him, at a minimum, narrowed.

The decision amounted to a powerful statement by the court’s conservative majority that presidents should be insulated from the potential that actions they take in carrying out their official duties could later be used by political enemies to charge them with crimes.

Chief Justice John Roberts, writing for the majority, said Trump had at least presumptive immunity for his official acts. He added that the trial judge must undertake an intensive factual review to separate official and unofficial conduct and to assess whether prosecutors can overcome the presumption protecting Trump for his official conduct.

If Trump prevails at the polls, the issue could become moot since he could order the Justice Department to drop the charges.

The liberal wing, in some of the harshest dissents ever filed by justices of the Supreme Court, said the majority had created a kind of king not answerable to the law.

Broad immunity for official conduct is needed, the chief justice wrote, to protect “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 wrote. “That immunity applies equally to all occupants of the Oval Office, regardless of politics, policy or party.”

The alternative, the chief justice wrote, is to invite tit-for-tat political reprisals.

“Virtually every president is criticized for insufficiently enforcing some aspect of federal law (such as drug, gun, immigration or environmental laws),” he wrote. “An enterprising prosecutor in a new administration may assert that a previous president violated that broad statute. Without immunity, such types of prosecutions of ex-presidents could quickly become routine.”

In dissent, Justice Sonia Sotomayor wrote that the decision was gravely misguided.

“Today’s decision to grant former presidents criminal immunity reshapes the institution of the presidency,” she wrote. “It makes a mockery of the principle, foundational to our Constitution and system of government, that no man is above the law.”

In her own dissent, Justice Ketanji Brown Jackson wrote that “the court has now declared for the first time in history that the most powerful official in the United States can (under circumstances yet to be fully determined) become a law unto himself.”

Trump embraced the outcome on social media, celebrating the ruling. “Big win for our constitution and democracy,” he wrote in all-capital letters. “Proud to be an American!”

Biden’s campaign focused on the events of Jan. 6 and nodded to Trump’s recent conviction in New York on falsifying business records to cover up a sex scandal. “Trump is already running for president as a convicted felon for the very same reason he sat idly by while the mob violently attacked the Capitol,” the campaign said in a statement attributed only to a senior campaign official. “He thinks he’s above the law and is willing to do anything to gain and hold on to power for himself.”

The chief justice’s opinion recounted the events surrounding the assault on the Capitol on Jan. 6, 2021, in an understated, almost antiseptic summary, while the dissents called them a singular threat to democracy. And where the chief justice stressed the importance of protecting all presidents, the dissents focused on Trump.

Roberts wrote that it was not the Supreme Court’s job to sift through the evidence and to separate protected conduct from the rest. “That analysis,” he wrote, “ultimately is best left to the lower courts to perform in the first instance.”

In all, the majority opinion was a broad defense of executive power and a detailed recipe for delay.

It was joined by the other Republican appointees: Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and, in part, Amy Coney Barrett.

In dissent, Sotomayor wrote that “the long-term consequences of today’s decision are stark.”

“The court effectively creates a law-free zone around the president, upsetting the status quo that has existed since the founding,” she wrote, adding: “The president of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution.”

She gave examples: “Orders the Navy’s SEAL Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”

Roberts rejected the prosecutors’ arguments that evidence about official acts could be presented to the jury for context and information about Trump’s motives.

Trump contended that he is entitled to absolute immunity from the charges, relying on a broad understanding of the separation of powers and a 1982 Supreme Court precedent that recognized such immunity in civil cases for actions taken by presidents within the “outer perimeter” of their official responsibilities.

Lower courts rejected that claim.

“Whatever immunities a sitting president may enjoy,” Chutkan wrote, “the United States has only one chief executive at a time, and that position does not confer a lifelong ‘get out of jail free’ pass.”

A unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit agreed. “For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” the panel wrote in an unsigned decision. “But any executive immunity that may have protected him while he served as president no longer protects him against this prosecution.”

In agreeing to hear the case, the Supreme Court said it would decide this question: “whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”

The court heard two other cases this term concerning the attack on the Capitol on Jan. 6, 2021.

In March, the court unanimously rejected an attempt to bar Trump from the ballot under Section 3 of the 14th Amendment, which makes people who engage in insurrection ineligible to hold office. The court, without discussing whether Trump was covered by the provision, ruled that states may not use it to exclude candidates for the presidency from the ballot.

On Friday, the court ruled that federal prosecutors had improperly used an obstruction law to prosecute some members of the pro-Trump mob that stormed the Capitol on Jan. 6. Two of the four charges against Trump are based on that law. In a footnote on Monday, Roberts wrote that “if necessary, the district court should determine in the first instance” whether those charges may proceed in light of the decision last week.

The court decided the case restoring Trump to the ballot at a brisk pace, hearing arguments a month after agreeing to and issuing its decision a month after that.

The immunity case has moved at a considerably slower tempo. In December, in asking the justices to leapfrog the appeals court and hear the case immediately, Jack Smith, the special counsel overseeing the prosecution, wrote that “it is of imperative public importance that respondent’s claims of immunity be resolved by this court.” He added that “only this court can definitively resolve them.”

The justices denied Smith’s petition 11 days after he filed it, in a brief order without noted dissents.

After the appeals court ruled against Trump, he asked the Supreme Court to intervene. Sixteen days later, on Feb. 28, the court agreed to hear his appeal, scheduling arguments for almost two months later, on the last day of the term. Another two months have passed since then.

At the argument, several of the conservative justices did not seem inclined to examine the details of the charges against Trump. Instead, they said, the court should issue a ruling that applies to presidential power generally.

“We’re writing a rule for the ages,” Gorsuch said.

The court’s announcement of that rule on Monday elicited some of the sharpest dissents ever filed by justices of the Supreme Court.

Jackson, for instance, said the practical consequences of the majority opinion “are a five-alarm fire that threatens to consume democratic self-governance and the normal operations of our government.”

Sotomayor, in a dissent joined by Jackson and Kagan, wrote: “The relationship between the president and the people he serves has shifted irrevocably. In every use of official power, the president is now a king above the law.” Sotomayor ended her opinion in unusual fashion. “With fear for our democracy,” she wrote, “I dissent.”

Roberts said the dissents were overwrought.

“They strike a tone of chilling doom that is wholly disproportionate,” he wrote, “to what the court actually does today — conclude that immunity extends to official discussions between the president and his attorney general, and then remand to the lower courts to determine ‘in the first instance’ whether and to what extent Trump’s remaining alleged conduct is entitled to immunity.”