The Supreme Court on Monday handed former President Donald Trump a partial victory by kicking the future of his January 6 criminal case down to a lower court.
Justices rejected Trump’s claim that former presidents enjoy absolute immunity from criminal charges related to actions that come under the scope of the presidency. But on a 6-3 vote, most of the high court decided that former presidents hold some immunity. In fact, commentators recognized that in some key parts, the ruling favored Trump’s side more than expected.
Chief Justice Roberts wrote that in some circumstances, presidents must know that they have immunity from criminal prosecution; otherwise, their ability to do their jobs could be affected.
“We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office,” Roberts wrote for the majority. “At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute.”
According to the ruling, the line will be drawn at whether a president’s conduct is related to official acts. Before Monday’s ruling, former presidents already held sweeping immunity from civil prosecution thanks to a Nixon-era case. The question before the high court was what to do now that Trump is the first ever former president to face criminal indictments.
The court’s decision gives future presidents the benefit of the doubt in some areas. Roberts wrote that when deciding whether an act is official or unofficial, courts may not inquire into the President’s motives.”
Roberts continues that future judges also cannot find that a president’s action is unofficial “merely because it allegedly violates a generally applicable law.”
The extent of what is allowed under the ruling is the subject of fierce debate among the justices. Justice Sonia Sotomayor, who wrote a stinging dissent that was joined by the other liberal justices, warned that a future president could order US forces to kill a rival and get away with it.
“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,” Sotomayor wrote. “Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”
The court kicked the future of Trump’s January 6-related indictment to U.S. District Judge Tanya Chutkan, who must now decide how the court’s landmark ruling will affect special counsel Jack Smith’s prosecution of Trump for his to overturn the 2020 presidential election.
Roberts and the court did make clear that some areas of the indictment cannot survive.
“Because the President cannot be prosecuted for conduct within his exclusive constitutional authority, Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials,” he wrote.
Trump’s communications with the Justice Department have been a key part of his actions after the 2020 election since the then-president sought to install a loyalist, Jeffrey Clark, as acting attorney general as Clark was supportive of Trump’s unfounded claims of widespread voter fraud.
It’s not immediately clear how quickly Chutkan could move, but it seems unlikely the former president will face trial before the November election. In taking its time to craft this ruling, justices have essentially handed Trump another victory for his delay tactics.
It’s likely that Trump’s Manhattan criminal trial will now be his only trial before the election. If he were to win the election, he would likely scuttle the January 6 case and Smith’s other criminal case in Florida related to Trump’s hoarding of classified documents.
The ruling largely falls on the lines that appeared present during oral arguments. Conservative justices, including the Trump-appointed Neil Gorsuch, stressed that the case before them was of far more importance than just the facts of what the former president is accused of doing after the 2020 election.
“We are writing a rule for the ages,” Gorsuch said.
While at the time, more liberal justices recoiled at the thought of permanently placing the presidency above the law.
“The most powerful person in the world with the greatest amount of authority could go into office knowing there would be no potential penalty for committing crimes,” Justice Ketanji Brown Jackson said during oral arguments. “I’m trying to understand what the disincentive is from turning the Oval Office into, you know, the seat of criminal activity in this country.”
The court’s ruling came after Justice Samuel Alito refused to recuse himself from the case. Democratic lawmakers had pressed Alito to step aside after The New York Times reported that a flag had been flown upside down at Alito’s Virginia home following the 2020 election, an established sign of distress that at the time was viewed as a symbol of solidarity for Trump’s false claims the election was stolen. Alito has said Martha-Ann Alito, his wife, decided to fly the flag upside down. In a letter to lawmakers, Alito said the flag was not intended to show support for the “Stop the Steal” movement.
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