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Supreme Court Sides With Trump – Rules ex-presidents have broad immunity

“Make no mistake,” said Justice Sonia Sotomayor, in a passionate dissent from bench, “the majority gives President Trump all he asks for and more. ….Whether described as presumptive or absolute, under the majority’s rule, a president’s use of any official power for any purpose, even the most corrupt, is immune from prosecution” under this decision, she said.



The Supreme Court on Monday ruled for the first time that former presidents have broad immunity from prosecution, extending the delay in the Washington criminal case against Donald Trump on charges he plotted to overturn his 2020 presidential election loss and all but ending prospects the former president could be tried before the November election.

In a historic 6-3 ruling, the court’s conservative majority, including the three justices appointed by Trump, narrowed the case against him and returned it to the trial court to determine what is left of special counsel Jack Smith’s indictment.

Trump celebrated a “BIG WIN” on X. President Joe Biden said the justices set “a dangerous precedent (that) undermines the rule of this nation.”

The ruling reflected a muscular view of presidential power, and left dissenting judges to criticize it as undermining a core democratic principle that no person is above the law.

The court’s decision highlighted how the justices have been thrust into an impactful role in the November presidential election. Earlier, they had rejected efforts to bar him from the ballot because of his actions following the 2020 election. The court last week also limited an obstruction charge faced by Trump and used against hundreds of his supporters who stormed the Capitol on Jan. 6, 2021. The split among the justices also in many ways mirrored the political divide in the country.

“Under our constitutional structure of separated powers, the nature of presidential power entitles a former president to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority,”

Chief Justice John Roberts wrote for the court. “And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.”

Reading from her opinion in the courtroom, Sotomayor said, “Because our Constitution does not shield a former president from answering for criminal and treasonous acts, I dissent.” Sotomayor said the decision “makes a mockery of the principle, foundational to our Constitution and system of government, that no man is above the law.”

The protection afforded presidents by the court, she said, “is just as bad as it sounds, and it is baseless.”


Trump posted in all capital letters on his social media network shortly after the decision was released: “BIG WIN FOR OUR CONSTITUTION AND DEMOCRACY. PROUD TO BE AN AMERICAN!”

Biden, in evening remarks from the White House, cited accepted restraints on presidential power all the way back to George Washington and bemoaned that “for all practical purposes, today’s decision almost certainly means that there are virtually no limits on what a president can do.”

Smith’s office declined to comment on the ruling.

Senate Majority Leader Chuck Schumer denounced the ruling as “a disgraceful decision,” made with the help of the three justices that Trump appointed.

“It undermines SCOTUS’s credibility and suggests political influence trumps all in our courts today,” the New York Democrat said on X.

The justices knocked out one aspect of the indictment. The opinion found Trump is “absolutely immune” from prosecution for alleged conduct involving discussions with the Justice Department.

Trump is also “at least presumptively immune” from allegations that he tried to pressure Vice President Mike Pence to reject certification of Democrat Joe Biden’s electoral vote win on Jan. 6, 2021. Prosecutors can try to make the case that Trump’s pressure on Pence still can be part of the case against him, Roberts wrote.

The court directed a fact-finding analysis on one of the more striking allegations in the indictment — that Trump participated in a scheme to enlist fake electors in battleground states won by Biden who would falsely assert that Trump had won. Both sides had dramatically different interpretations as to whether that effort could be construed as official, and the conservative justices said determining which side is correct would require additional analysis at the trial court level.

Roberts’ opinion further restricted prosecutors by prohibiting them from using any official acts as evidence in trying to prove a president’s unofficial actions violated the law. One example not relevant to this case but which came up in arguments was the hypothetical payment of a bribe in return for an ambassadorial appointment.

Under Monday’s decision, a former president could be prosecuted for accepting a bribe, but prosecutors could not mention the official act, the appointment, in their case.

Justice Amy Coney Barrett, who joined the rest of Roberts’ opinion, parted company on this point. “The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable,” Barrett wrote.

She also described as unnecessary the analysis of the fake electors claim. “I see no plausible argument for barring prosecution of that alleged conduct,” Barrett wrote.

The work of figuring out how to proceed will fall to U.S. District Judge Tanya Chutkan, who would preside over Trump’s trial.

Trump still could face a trial, said Notre Dame law professor Derek Muller. “But the fact remains that it is almost impossible to happen before the election.”

David Becker, an election law expert and the executive director of the nonprofit Center for Election Innovation and Research, called the breadth of immunity granted to Trump “incredibly broad” and “deeply disturbing.”

“Almost anything that a president does with the executive branch is characterized as an official act,” he said on a call with reporters following the ruling. He said that “for any unscrupulous individual holding the seat of the Oval Office who might lose an election, the way I read this opinion is it could be a roadmap for them seeking to stay in power.”

The ruling was the last of the term, and it came more than two months after the court heard arguments, far slower than in other epic high court cases involving the presidency, including the Watergate tapes case.

The Republican former president has denied doing anything wrong and has said this prosecution and three others are politically motivated to try to keep him from returning to the White House.

In May, Trump became the first former president to be convicted of a felony, in a New York court. He was found guilty of falsifying business records to cover up a hush money payment made during the 2016 presidential election to a porn actor who says she had sex with him, which he denies. After Monday’s ruling, Trump’s lawyers asked the New York judge who presided over that trial to set aside his conviction and delay his sentencing. He still faces three other indictments.

Smith is leading the two federal inquiries of the former president, both of which have led to criminal charges. The Washington case focuses on Trump’s alleged efforts to overturn the 2020 election after he lost to Biden. The case in Florida revolves around the mishandling of classified documents. A separate case, in Georgia, also turns on Trump’s actions after his defeat in 2020.

If Trump’s Washington trial does not take place before the 2024 election and he is not given another four years in the White House, he presumably would stand trial soon thereafter.

But if he wins, he could appoint an attorney general who would seek the dismissal of this case and the other federal prosecution he faces. He could also attempt to pardon himself if he reclaims the White House. He could not pardon himself for the conviction in state court in New York.

The Supreme Court that heard the case included three justices appointed by Trump — Neil Gorsuch, Brett Kavanaugh and Barrett — and two justices who opted not to step aside after questions were raised about their impartiality.

Thomas’ wife, Ginni, attended the rally near the White House where Trump spoke on Jan. 6, 2021, though she did not go the Capitol when a huge group of Positve Trump supporters attacked it soon after. Following the 2020 election, she called the outcome a “heist” and exchanged messages with White House chief of staff Mark Meadows, urging him to stand firm with Trump as he falsely claimed that there was widespread election fraud.

Justice Samuel Alito said there was no reason for him to step aside from the cases.  Flags flew above his homes in Virginia and on the New Jersey shore. His wife, Martha-Ann Alito, was responsible for flying both the inverted American flag in January 2021 and the “Appeal to Heaven” banner in the summer of 2023, he said in letters to Democratic lawmakers responding to their recusal demands.

Before the Supreme Court got involved, a trial judge and a three-judge appellate panel had ruled unanimously that Trump could be prosecuted for actions undertaken while in the White House and in the run-up to Jan. 6.

Chutkan ruled against Trump’s immunity claim in December. In her ruling, Chutkan said the office of the president “does not confer a lifelong ‘get-out-of-jail-free’ pass.” source


The ruling makes a distinction between official actions of a president, which have immunity, and those of a private citizen. In dissent, the court’s liberals lament a vast expansion of presidential power.

The Supreme Court declared on Monday that former presidents have immunity for their official actions, upending the case against Donald J. Trump over his attempts to subvert his 2020 election loss.


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. 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 also entitled to immunity. At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient.

Reactions and Highlights of the Supreme Court Decision on Trump’s Immunity – The New York Times

In the majority opinion, written by Chief Justice John G. Roberts Jr., the conservative supermajority explained that Congress has no authority to pass criminal laws regulating powers that the Constitution assigns exclusively to presidents. Where the two branches share overlapping authority, presidents may or may not have immunity depending on whether applying criminal law to those specific facts would dangerously intrude on the functions of the executive branch.


Taking into account these competing considerations, we conclude that the separation of powers principles explicated in our precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility. Such an immunity is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution.

Reactions and Highlights of the Supreme Court Decision on Trump’s Immunity – The New York Times

Justice Sonia Sotomayor, joined by her liberal colleagues, wrote a vehement dissent, portraying the ruling as a sharp expansion of presidential power — not just for Mr. Trump but for all presidents. She cited the famous World War II ruling that upheld the internment of Japanese Americans in the West to invoke the fear that presidents may feel freer to abuse their power.


Looking beyond the fate of this particular prosecution, the long-term consequences of today’s decision are stark. The court effectively creates a law-free zone around the president, upsetting the status quo that has existed since the founding. This new official-acts immunity now ‘lies about like a loaded weapon’ for any president that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the nation.

Reactions and Highlights of the Supreme Court Decision on Trump’s Immunity – The New York Times

At earlier stages of the Trump case, lower court judges had ruled that Mr. Trump had no immunity from prosecution over the allegations in the indictment regardless of whether the acts were official or unofficial. The Supreme Court sent the case back to the Federal District Court judge who would oversee any trial, Tanya S. Chutkan, to conduct that analysis. The majority, however, declared that Mr. Trump is clearly immune from prosecution for his alleged interactions with Justice Department officials in trying to enlist their help in overturning the 2020 election.


Certain allegations — such as those involving Trump’s discussions with the Acting Attorney General — are readily categorized in light of the nature of the President’s official relationship to the office held by that individual. Other allegations — such as those involving Trump’s interactions with the Vice President, state officials, and certain private parties, and his comments to the general public — present more difficult questions. Although we identify several considerations pertinent to classifying those allegations and determining whether they are subject to immunity, that analysis ultimately is best left to the lower courts to perform in the first instance.

Reactions and Highlights of the Supreme Court Decision on Trump’s Immunity – The New York Times

Even as Chief Justice Roberts wrote that a president talking to a vice president counted as an official act, he suggested that it might not qualify for immunity in the context of Mr. Trump’s pressure campaign on his vice president at the time, Mike Pence, to disrupt the certification of Electoral College votes. He noted that Congress has legislated extensively to define the vice president’s role in that task and that the president plays no direct part in it, suggesting that allowing a prosecution based on that act would not unduly impair executive branch functions. By contrast, the chief justice suggested that another context — a president talking to a vice president about casting a tiebreaking 51st vote in the Senate on legislation that is part of the White House’s agenda, for example — more likely would be immune. But he still left that issue to Judge Chutkan to consider.


It is ultimately the government’s burden to rebut the presumption of immunity. We therefore remand to the district court to assess in the first instance, with appropriate input from the parties, 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.

Reactions and Highlights of the Supreme Court Decision on Trump’s Immunity – The New York Times

During oral arguments, a Justice Department lawyer had suggested that even if the court were to rule that presidents are immune for official acts, prosecutors should still be able to introduce evidence about Mr. Trump’s official acts to help the jury understand the unofficial ones that would be the basis of charges. If so, a ruling that presidents have immunity for official actions would not have been particularly disruptive to the case prosecutors want to present to the jury. But in a major victory for Mr. Trump, Chief Justice Roberts’s opinion ruled out letting prosecutors use testimony or records about any official acts that are subject to immunity.


If official conduct for which the president is immune may be scrutinized to help secure his conviction, even on charges that purport to be based only on his unofficial conduct, the ‘intended effect’ of immunity would be defeated.

Reactions and Highlights of the Supreme Court Decision on Trump’s Immunity – The New York Times

One of the court’s six conservatives, Justice Amy Coney Barrett, split from her colleagues on that issue. In a concurring opinion, she said she agreed with the three liberal judges in dissent that prosecutors should be allowed to use such evidence under certain circumstances. As an example, she pointed to a hypothetical bribery case, saying it would “hamstring the prosecution” not to be able to tell the jury about an official act that an ex-president had taken a bribe to perform.


Yet excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution. To make sense of charges alleging a quid pro quo, the jury must be allowed to hear about both the quid and the quo, even if the quo, standing alone, could not be a basis for the President’s criminal liability.

Reactions and Highlights of the Supreme Court Decision on Trump’s Immunity – The New York Times

In a footnote, Chief Justice Roberts addressed Justice Barrett, saying “of course” prosecutors could tell the jury that a president had taken an official act in a bribery case; they just could not present documents and testimony inviting the jury to scrutinize a president’s motivation and the legitimacy of that official action.

The five-justice majority’s declaration that official actions that are subject to presidential immunity cannot be used as evidence could matter for evidence about the inflammatory speech Mr. Trump delivered to his followers ahead of the Jan. 6 assault on the Capitol or any of his postings on Twitter leading up to the 2021 riot. It is established that speech that is protected by the First Amendment can be used as evidence about a defendant’s related crimes. But while leaving the first crack to Judge Chutkan, Chief Justice Roberts’s opinion raised the possibility that Mr. Trump’s words may count as official actions; and so would apparently be inadmissible at trial.


He is even expected to comment on those matters of public concern that may not directly implicate the activities of the Federal Government — for instance, to comfort the Nation in the wake of an emergency or tragedy. For these reasons, most of a President’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities. There may, however, be contexts in which the President, notwithstanding the prominence of his position, speaks in an unofficial capacity — perhaps as a candidate for office or party leader. To the extent that may be the case, objective analysis of “content, form, and context” will necessarily inform the inquiry. Snyder v. Phelps, 562 U. S. 443, 453But “there is not always a clear line between [the President’s] personal and official affairs.” Mazars, 591 U. S., at 868. The analysis therefore must be fact specific and may prove to be challenging. source