Contrary to Justice Sonia Sotomayor’s dissent, this does not place the president ‘above the law.’
The Supreme Court held that presidents have absolute immunity from criminal prosecution for actions within their “core constitutional powers.”
Chief Justice John Roberts’s 6–3 majority opinion in Trump v. United States says that all “official acts” of the presidency — actions taken within the outer ambit of the executive authority, even if not necessarily within core Article II powers — carry a presumption of immunity that would, it appears, be difficult for a prosecutor to overcome. Nevertheless, the Court cautions that presidents have no immunity from prosecution for private misconduct — including misconduct that may tangentially relate to a president’s status, which is sure to complicate distinguishing what is “official” from what is not.
These caveats make yesterday’s ruling something less than a complete victory for Donald Trump, whose indictment in Biden Justice Department special counsel Jack Smith’s election-interference prosecution gave rise to the issue in the first place. But make no mistake: The decision is a triumph for the former president and his 2024 campaign to return to the Oval Office. Even if it leaves him theoretically vulnerable to eventual trial and conviction, the chance that that could happen prior to the November election — indeed, before a president is inaugurated in January 2025 — is now microscopic.
Trump has publicly insisted that presidents must have sweeping immunity for all their actions — a position more ambitious than his own lawyers took in the case. The Court’s conservative majority rejected that contention — unsurprisingly, given that the republic had managed to get along for over 230 years with no express judicial acknowledgement of immunity from prosecution, and, not coincidentally, with no indictments of former presidents by their political adversaries. The Court also soundly rejected Trump’s theory that he was immune from prosecution by virtue of being acquitted by the Senate in his second impeachment trial.
The Court was concerned to give proper deference to the Framers’ carefully calibrated balance of power between the political branches. It is essential to the maintenance of that balance that the executive power be preserved — neither expanded nor reduced. To guard against abuses of the presidency’s awesome powers, Congress was endowed with a powerful arsenal to hold presidents accountable, to push back decisively against executive excess, and even to impeach, remove, and disqualify an unfit chief executive. Symmetrically, to protect the executive branch from the Article I branch’s propensity to disturb the Constitution’s balance of power by aggressive legislation, the president is vested with authorities that may not be eroded by Congress — including by its power to enact penal laws.
The gray zone is where a criminal law does not ostensibly target a president, let alone a core executive power, but its application could criminalize acts that are within the expansive modern perimeter of the president’s duties. In those circumstances, the Court holds that the president’s official acts are at least presumptively immune.
This presumption would be extraordinarily difficult to overcome, for two reasons. First, according to the majority, a president is “immune from prosecution . . . unless the Government [prosecutors] can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’” Second, the majority is adamant that courts must “not inquire into the President’s motives.”
Contrary to the dissent penned by Justice Sonia Sotomayor (and joined by her fellow progressive justices, Elena Kagan and Ketanji Brown Jackson), this does not place the president “above the law.” It instead recognizes that our supreme law — the Constitution — vests in Congress the power to check executive authority. And of course, presidents are just as accountable as any other American for their private misconduct.
A different approach to the majority was advanced in the concurrence of Amy Coney Barrett, which emphasized not presumptive immunity and the related complex line-drawing of the majority, but the fact that there are limits on what Congress can criminalize within the core powers of Article II.
As for the January 6 case, the decision likely means that Trump will be immune from much of the indictment. The bright-line example is the allegation that he corruptly ensnared the Justice Department into his efforts to reverse the election result. The Justice Department answers to the president, and if Trump ordered it to pursue voter-fraud investigations, which he was empowered to do, the Court will not consider whether this was done in bad faith. Similarly, under the majority opinion, Trump’s communications with Vice President Pence could fall within the ambit of his official duties, even if done for the improper purpose of pressuring him to discount state-certified electoral votes.
Second, it seems inconceivable that the searching analysis the Court has directed in remanding the case back to Judge Tanya Chutkan could be completed prior to the November election. Even if it arguably could, Judge Chutkan’s findings would surely be disputed, particularly by the defense, so there would still be a live immunity issue that could, again, be appealed to the D.C. Circuit and the Supreme Court prior to trial.
Biden partisans and anti-Trumpers are already raging over this. It was never appropriate, however, for Smith to factor the political-campaign calendar into his prosecutorial decision-making. The Court’s burden was not to compound Smith’s unseemly rush to trial, but to try to get a complex and fraught issue right.