Donald Trump, or any other current or former U.S. president, enjoys “absolute immunity” for actions within their constitutional authority, a divided Supreme Court ruled in a 6-3 opinion on Monday.
“There is no immunity for unofficial acts,” Chief Justice John Roberts wrote for the Court’s conservatives.
The decision is likely to hobble much of the Justice Department’s prosecution of Trump for his alleged efforts to illegally overturn the 2020 election, as well as greatly expand the powers of the U.S. presidency in an election year focused largely on rule of law and the survival of democracy.
“The President of the United States is the most powerful person in the country, and possibly the world,” Justice Sonia Sotomayor wrote in a blistering dissent. She added:
When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. 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.
In Trump v. United States, the Court also set forth a general legal framework for the criminal justice system to respond to any president committing federal crimes while in office.
The Court handed the case back down to U.S. District Judge Tanya Chutkan to determine the line between Trump’s official and unofficial acts charged in the indictment. The future hearing to determine where to draw that line has been likened to a potential mini-trial, whose contours have become clearer with the Supreme Court’s ruling.
“Presidents cannot be indicted based on conduct for which they are immune from prosecution,” Roberts wrote. He added:
On remand, the District Court must carefully analyze the indictment’s remaining allegations to determine whether they too involve conduct for which a President must be immune from prosecution. And the parties and the District Court must ensure that sufficient allegations support the indictment’s charges without such conduct.
Prosecutors may not admit testimony or private records of the president or his advisers probing such conduct at trial, the majority added.
In a concurring opinion, Justice Amy Coney Barrett wrote that she would have narrowed the reach of the majority’s ruling to allow for evidence of Trump’s official acts to be used against him at a trial on allegations outside of those acts.
“The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable,” Barrett wrote, emphasizing the word in her opinion.
The disagreement among her conservative peers on this point, including other Trump appointees, likely will weaken any claims against the former president that survive Chutkan’s analysis.
Under Roberts’ analysis, Trump has absolute immunity for acts “within his conclusive and preclusive constitutional authority” — his core presidential powers. Trump is entitled to “presumptive” immunity for those powers that he shares with Congress.
Regarding the specifics of the charges against Trump, the Court distinguished between acts that it determined were clearly “official” conduct and those allegations that are a closer call “with respect to the indictment’s extensive and detailed allegations covering a broad range of conduct.”
The Supreme Court’s ruling likely makes a pre-election trial unworkable.
The flowchart below shows the pathways for prosecuting presidential conduct after the Court’s decision.
