July 1, 2024
Sitting presidents, future presidents and past presidents have absolute immunity from criminal prosecution. But only in one circumstance. If the president was acting in his official capacity as president of the United States and the act he took falls under his official duties when he committed the crime. A sitting and former president receives no immunity from criminal prosecution for unofficial acts he takes while in office. So says the United States supreme court.
I’m going to tell you all about how this will apply to former President Trump and his criminal prosecutions in a second — yes, those election interference cases can go forward in some capacity — but first – today’s ruling was split along ideological lines. It’s nuanced and complicated but all the conservative justices were in the majority and all the liberals dissented. The opinion of the court was written by the Chief Justice John Roberts.
He writes – “the president enjoys no immunity for his unofficial acts, and not everything the president does is official. The president is not above the law. 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.”
The dissent argues the majority went way too far and lays out a stark scenario. Justice Sonya Sotomayor writes, “a president’s use of any official power for any purpose, even the most corrupt, is immune from prosecution. That is just as bad as it sounds, and it is baseless. …it makes a mockery of the principle, foundational to our constitution and system of government, that no man is above the law.” She writes in 30-pages of detail about how the conservative majority “invents” historical context for today’s ruling. She says it’s not based in reality. She ends by saying “with fear for our democracy, I dissent.”
So I know you’re going to ask – what are considered official acts of the president and what are unofficial acts? Don’t you wish the supreme court majority made that clear? They really didn’t and the justices acknowledge that. Justice Roberts writes “distinguishing the president’s official actions from his unofficial ones can be difficult. When the president acts pursuant to “constitutional and statutory authority,” he takes official action to perform the functions of his office. …determining whether an action is covered by immunity thus begins with assessing the president’s authority to take that action. …the immunity the court has recognized therefore extends to the “outer perimeter” of the president’s official responsibilities, covering actions so long as they are “not manifestly or palpably beyond [his] authority.”
But the court specifically says when the president uses his official powers to commit a crime, and prosecutors try to charge him for it, obviously prosecutors would need evidence to bring that case. But the supreme court caps that evidence too by saying “in dividing official from unofficial conduct, courts may not inquire into the president’s motives. Such a “highly intrusive” inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose. Fitzgerald, 457 u. S., at 756. …nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law. Otherwise, presidents would be subject to trial on “every allegation that an action was unlawful,” depriving immunity of its intended effect.”
The courts go on to say – prosecutors cannot even use official actions the president takes as evidence to try and prove he committed a crime for unofficial acts. Justice Amy Coney Barrett vehemently disagrees with this part.
Now the majority says– a president cannot commit a crime and just wave a magic wand and say this is an official act so I am immune. The Chief Justice says “if the president claims authority to act but in fact exercises mere “individual will” and “authority without law,” the courts may say so.”
But this next part is important… the opinion goes on to say “but once it is determined that the president acted within the scope of his exclusive authority, his discretion in exercising such authority cannot be subject to further judicial examination. …congress cannot act on, and courts cannot examine, the president’s actions on subjects within his “conclusive and preclusive” constitutional authority.”
So what does this mean specifically for former President Trump? Supreme Court says specifically – the way the former president allegedly leveraged the power of the Justice Department to pressure states to replace their electors and all the conversations he had with the DOJ officials are all considered “official actions” of the president. And further – the Supreme Court said – because those are official acts — none of that evidence can be used to try and prove unofficial actions he took were allegedly illegal. Like I said – this is the part Justice Barrett disagrees with. When it comes to former Vice President Pence and how Trump allegedly pressured him to return the electoral votes back to the states on January 6th – the justices said that’s not as clear cut – they said Trump is “at least presumptively immune from prosecution” when it comes to what he said to Pence– however any type of alleged interference in pence’s official duty to certify the election on January 6th is not an official act and can be open to criminal prosecution. All the action trump and his allies allegedly took with individual states to produce those fake electors and the rhetoric trump used in his tweets prior to and in his speech on January 6th falls into the “it’s complicated category” and will be sent back to the lower courts to be argued.
So what now? The supreme court says trump’s federal election interference will go back to Judge Tanya Chutkan in the federal district court in Washington DC. There will be more preliminary hearings to go through all the parts of special counsel jack smith’s indictment to determine which actions trump took are now considered official and which are considered unofficial. If some or all are deemed to be unofficial and open to criminal prosecution – trump’s legal team can appeal the ruling again and we may be right back in front of the supreme court next year or beyond.
Read the landmark Supreme Court ruling here.
