In ruling that Donald Trump and other former presidents enjoy immunity from prosecution for “official acts,” the Supreme Court on Monday stunningly dismissed the principle that no one is above the law, in a ruling that divided Republican and Democratic appointees at a time when the court is grappling with complaints that its members are politicians in robes.
It was also frustrating that the court took so long to issue a ruling, more than six months after special counsel Jack Smith asked the justices to expedite the review. Monday’s decision, which came more than two months after oral arguments, does not give Trump everything he wanted and does not derail the federal prosecution of the former president for his outrageous attempts to overturn the results of the 2020 election.
But the majority opinion by Chief Justice John G. Roberts Jr. makes that process even more difficult. It also makes it almost certain that Trump will not be impeached before the November election. If Trump wins that election, he could ask for a stay of proceedings. In that case, justice delayed would actually be justice denied.
Roberts concluded that a former president is “absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority” and also possesses “presumptive immunity” for acts “within the outer perimeter of his official responsibility.” Prosecutors could rebut presumptive immunity by showing that prosecuting a former president for a particular action would pose no danger of intrusion on the authority and functions of the executive branch.
But the court declined to say whether several actions allegedly taken by the former president would be immune from prosecution, though it did find that Trump enjoyed immunity for one course of conduct described in the indictment: his discussions with Justice Department officials about investigating alleged election fraud and his sending a department letter to several states.
The status of Trump’s other actions to advance his plan will be decided by a lower court. Among them, his efforts to persuade Vice President Mike Pence to refuse to certify validly cast electoral votes. Roberts said a lower court must decide whether prosecuting Trump for his lobbying of Pence would pose a danger of intrusion on executive branch authority. A lower court will also decide to what extent Trump’s other actions straddle the line between “official” and “unofficial.” The country would have been better served if the court had grappled with these questions on its own to expedite Trump’s impeachment.
Even if Smith succeeds in prosecuting Trump for “unofficial” acts, Roberts said prosecutors would not be able to introduce into evidence testimony or documents related to official acts that were also part of the alleged illegal scheme. (Judge Amy Coney Barrett, a Trump appointee who said Roberts’ opinion was mostly “consistent with my view,” rejected that conclusion.)
The decision comes after the court ruled last week that an obstruction statute used against the Jan. 6 defendants — which also figures in the charges against Trump — had been interpreted too broadly. (It’s unclear whether that decision will hamper the case against Trump.)
Roberts expressed strong support for his view of presidential prerogatives and was concerned that a president might refrain from taking decisive action for the good of the country for fear of being charged with a crime upon leaving office.
That concern seems overblown and is offset by the principle that no American is above the law. As Justice Ketanji Brown Jackson succinctly put it, the majority “accepts as a basic starting premise that criminal laws of general application do not No “apply to everyone in our society.”
Whether or not Trump faces a jury of his peers in this case, it is a dangerous idea.
