In Trump v. United States, the Supreme Court delivered former president Donald Trump a huge victory and special counsel Jack Smith a crushing defeat.
Top line: I think that the only sensible option for Smith now is to abandon his prosecution. It would likely be at least two years before any prosecution would go to trial, and it’s far from clear what pieces of his case Smith would be able to try to assemble. And, of course, if Trump is elected in November, he will dismiss the prosecution.
Summary of ruling:
By a vote of 6* to 3, the Court, in an opinion by Chief Justice Roberts, ruled that (1) Trump has absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority; and that (2) Trump has immunity, whether absolute or presumptive (question is left open), for his other official actions.
On how to categorize actions as official versus unofficial, the Court states that the definition of “official” actions extends to the “outer perimeter” of the president’s official responsibilities, covering actions so long as they are “not manifestly or palpably beyond [his] authority.” “In dividing official from unofficial conduct, courts may not inquire into the President’s motives.” “Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law.”
The Chief’s opinion observes that the categorization of actions as official versus unofficial “raises multiple unprecedented and momentous questions about the powers of the President and the limits of his authority under the Constitution.” It sets forth “several considerations pertinent to classifying [the indictment’s] allegations and determining whether they are subject to immunity,” but it leaves the analysis of the complaint’s allegations “to the lower courts to perform in the first instance.”
Here is what the Chief has to say about the allegations in the indictment:
- Trump is “absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.”
- “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.”
“The question then becomes whether that presumption of immunity is rebutted under the circumstances. When the Vice President presides over the January 6 certification proceeding, he does so in his capacity as President of the Senate…. At the same time, however, the President may frequently rely on the Vice President in his capacity as President of the Senate to advance the President’s agenda in Congress…. Applying a criminal prohibition to the President’s conversations discussing such matters with the Vice President—even though they concern his role as President of the Senate—may well hinder the President’s ability to perform his constitutional functions.”
“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.”
- The remaining allegations “involve Trump’s interactions with persons outside the Executive Branch: state officials, private parties, and the general public.”
“On Trump’s view, the alleged conduct qualifies as official because it was undertaken to ensure the integrity and proper administration of the federal election. Of course, the President’s duty to “take Care that the Laws be faithfully executed” plainly encompasses enforcement of federal election laws passed by Congress. Art. II, §3. And the President’s broad power to speak on matters of public concern does not exclude his public communications regarding the fairness and integrity of federal elections simply because he is running for re-election. Similarly, the President may speak on and discuss such matters with state officials—even when no specific federal responsibility requires his communication—to encourage them to act in a manner that promotes the President’s view of the public good.”
“As the Government sees it, however, these allegations encompass nothing more than Trump’s ‘private scheme with private actors.’”
“Determining whose characterization may be correct, and with respect to which conduct, requires a close analysis of the indictment’s extensive and interrelated allegations…. The necessary analysis is … fact specific, requiring assessment of numerous alleged interactions with a wide variety of state officials and private persons…. We … remand to the District Court to determine in the first instance—with the benefit of briefing we lack—whether Trump’s conduct in this area qualifies as official or unofficial.”
- The indictment contains various allegations regarding Trump’s conduct in connection with the events of January 6 itself: tweets encouraging his supporters to travel to D.C., his speech on the Mall that morning, and his directing the crowd to go to the Capitol for the alleged purpose of pressuring the Vice President.
The President possesses “extraordinary power to speak to his fellow citizens and on their behalf.” … 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. The analysis therefore must be fact specific and may prove to be challenging…. This necessarily factbound analysis is best performed initially by the District Court.
In an important part (Part III-C) of the majority opinion that Justice Barrett does not join, the Chief further holds that conduct for which a president is immune from prosecution cannot be used as evidence in support of charges for which he is not immune.
The Chief addresses the dissenters in Part IV-C: They “strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today.” “Coming up short on reasoning, the dissents repeatedly level variations of the accusation that the Court has rendered the President ‘above the law.’” But:
Like everyone else, the President is subject to prosecution in his unofficial capacity. But unlike anyone else, the President is a branch of government, and the Constitution vests in him sweeping powers and duties. Accounting for that reality—and ensuring that the President may exercise those powers forcefully, as the Framers anticipated he would—does not place him above the law; it preserves the basic structure of the Constitution from which that law derives.
The dissents’ positions in the end boil down to ignoring the Constitution’s separation of powers and the Court’s precedent and instead fear mongering on the basis of extreme hypotheticals about a future where the President “feels empowered to violate federal criminal law.” The dissents overlook the more likely prospect of an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next…. The enfeebling of the Presidency and our Government that would result from such a cycle of factional strife is exactly what the Framers intended to avoid.
The Chief concludes:
This case poses a question of lasting significance: When may a former President be prosecuted for official acts taken during his Presidency? Our Nation has never before needed an answer. But in addressing that question today, unlike the political branches and the public at large, we cannot afford to fixate exclusively, or even primarily, on present exigencies. In a case like this one, focusing on “transient results” may have profound consequences for the separation of powers and for the future of our Republic.
The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution. And the system of separated powers designed by the Framers has always demanded an energetic, independent Executive. The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts. That immunity applies equally to all occupants of the Oval Office, regardless of politics, policy, or party.
* Addendum: On further review, I’m unclear whether to count Justice Barrett as joining the majority opinion (except for Part III-C). On the one hand, the Court’s syllabus states that she does so. On the other hand, she writes only that the “remainder of the opinion is consistent with my view that the Constitution prohibits Congress from criminalizing a President’s exercise of core Article II powers and closely related conduct,” and she says that she “would have framed the underlying legal issues differently.”