Trump has presumptive immunity for pressuring Pence to overturn 2020 election

Former President Trump has presumptive immunity for pressuring then-Vice President Mike Pence to subvert the results of the presidential election in his favor by certifying slates of so-called “fake electors” on Jan. 6, 2021, the Supreme Court ruled Monday.

The determination came within the justices’ highly anticipated opinion on presidential immunity, in which they ruled that core presidential powers are immune from criminal prosecution. The decision returns Trump’s federal election interference case back to a lower court to decide whether his actions leading up to Jan. 6 merit the protection.

Trump is accused of attempting to “enlist” his vice president to “fraudulently alter the election results” in seven key swing states. 

Roberts wrote that whenever the president and vice president are discussing official responsibilities, they are engaging in official conduct — and that presiding over the certification of presidential election results is a constitutional and statutory duty of the vice president.

“The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct,” Roberts wrote.

However, the chief justice left open the question of whether Trump’s specific conduct remains immune from criminal prosecution, leaving it for lower courts to decide. 

“The question then becomes whether that presumption of immunity is rebutted under the circumstances,” Roberts said.

Whether a swath of other allegations is shielded by presidential immunity must also be decided by the lower courts, including Trump’s interactions with state officials, private parties and the general public. However, the justices already determined that some allegations fall squarely in Trump’s official duties and are covered by absolute immunity. 

Trump is accused of attempting to use the “power and authority” of the Justice Department to “conduct sham election crime investigations.” He allegedly met with the acting attorney general and other senior officials in the DOJ and White House to discuss the matter.

Since the executive branch has “exclusive authority and absolute discretion” to decide which crimes to investigate and prosecute, Trump is immune from criminal prosecution on those actions. 

“The President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials,” Roberts wrote.

Trump faces four counts in his federal election subversion case and has pleaded not guilty.