Supreme Court carves out presidential immunity, likely delaying Trump trial

The Supreme Court on Monday capped its term by determining core presidential powers are immune from criminal prosecution, a win for former President Trump that returns his federal case involving efforts to overturn the 2020 election back to a lower court to determine whether his actions leading up to Jan. 6 merit the protection. 

In a 6-3 ruling along ideological lines, Chief Justice John Roberts wrote that former presidents have broad immunity from prosecution — a decision that stopped just short of granting the total immunity sought by Trump, but that nonetheless aids the former president by likely delaying that trial beyond the November election. 

The decision takes a sledgehammer to some of special counsel Jack Smith’s indictment of Trump, determining various actions Trump took to remain in power after losing the election were indeed protected. 

“At least with respect to the president’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is entitled to at least presumptive immunity,” Roberts wrote in his majority opinion.

“There is no immunity for unofficial acts,” the court determined elsewhere in the opinion. 

The decision earned a stern rebuke from the court’s liberal justices, who condemned colleagues for broadly shielding presidents who commit crimes while in office.

“Today’s decision to grant former presidents criminal immunity reshapes the institution of the Presidency,” Justice Sonia Sotomayor wrote, joined by fellow liberal Justices Elena Kagan and Ketanji Brown Jackson.

“It makes a mockery of the principle, foundational to our Constitution and system of government, that no man is above the law.”

The justices at oral arguments in April had appeared weary of some blanket immunity claims Trump’s team argued before them, including that assassinating political rivals would be considered an official act.

“When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution,” Sotomayor wrote Monday in dissent. 

“Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune,” she continued. “Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”

The decision returns the case to district court, where proceedings in the case have been paused while the high court weighed Trump’s immunity claims. Judge Tanya Chutkan, who is overseeing the matter, must now weigh the issue for a second time as well as other pending efforts by Trump seeking to toss the case.

The parties will now fight over how to apply the justices’ immunity test to the conduct alleged in Trump’s indictment, providing him with pathways to prolong the proceedings and delay his trial past Election Day, no matter how the case ultimately shakes out. 

Although the Supreme Court’s opinion provides no definitive resolution, Roberts’s opinion does provide some “guidance” that dooms some allegations from moving forward. 

The opinion condoned Trump’s outreach to the Department of Justice at a time when his allies were asking prosecutors to halt certification of election results to allow for investigation into what were baseless claims of election fraud.

“Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.”

The decision similarly notes that courts should not try to peer into the mind of a president when weighing their actions.

“In dividing official from unofficial conduct, courts may not inquire into the President’s motives,” they wrote.

That position likewise earned rebuke from Roberts’s dissenting colleagues.

“The main takeaway of today’s decision is that all of a President’s official acts, defined without regard to motive or intent, are entitled to immunity that is ‘at least … presumptive,’ and quite possibly ‘absolute,’” Sotomayor wrote in her dissent.

Sotomayor read it aloud from the bench, a rarity that underscores the sharp disagreements on the case. She looked over at Roberts at times as she read it, though the chief justice never returned her gaze.

“No matter how you look at it, the majority’s official-acts immunity is utterly indefensible,” Sotomayor wrote.

As for other issues, like Trump’s pressure campaign on then-Vice President Mike Pence leading up to Jan. 6, those allegations could possibly still move forward.

“It is ultimately the Government’s burden to rebut the presumption of immunity,” Roberts wrote.

“We therefore remand to the District Court to assess … whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch,” he added.

The opinion did not address how the Supreme Court’s presidential immunity test applies to Trump’s two other criminal cases that haven’t yet gone to trial.

Trump has mounted similar defenses in his other federal criminal case accusing him of mishandling classified documents and his Georgia charges accusing him of conspiring to subvert President Biden’s 2020 win in the state. He asserts he is immune from criminal prosecution because the charges involve decisions he made while still president. 

Two conservative justices, Clarence Thomas and Samuel Alito, faced calls from Democrats to recuse from Trump’s case at the Supreme Court.  

Thomas’s wife reportedly communicated with key people involved in Trump’s efforts to challenge the 2020 election results, and Alito recently came under controversy for flags flown at his homes connected to the “Stop the Steal” effort. 

Updated at 5:04 p.m. EDT