In a historic, consequential, and controversial decision on Monday, the Supreme Court granted substantial immunity from prosecution to former president Donald Trump on election subversion charges.
The decision almost certainly will delay his trial until after the November election, if it takes place at all. The vote was 6-to-3, with the court鈥檚 Republican appointees all in the majority, and the Democratic appointees in fierce dissent.
The decision, written by Chief Justice John Roberts, established a broad new immunity from prosecution, not just for Trump, but for past and future presidents, too. Presidents may not be prosecuted for exercising their 鈥渃ore鈥� constitutional powers, and even in situations where former presidents might be prosecuted after leaving office, they are entitled to at least presumptive immunity from prosecution for official actions they took as president.
Such immunity is needed, said the chief justice, in order to protect an 鈥渆nergetic,鈥� and 鈥渋ndependent executive,鈥� willing to take 鈥渂old鈥� actions and make unpopular decisions when needed. And while Roberts said that private actions by a former president are not protected from prosecution, his opinion seemed to inexorably intertwine private and public actions.
The court, however, did not itself resolve whether any of the election subversion charges against Trump could go forward; rather, the justices sent the case back to the trial court judge to determine whether any of the charges against Trump are sufficiently private to survive鈥攊n other words, not within his official purview as president. And it made it far more difficult to prosecute a former president by limiting the evidence a prosecutor could present.
Stuart Gerson, a Republican who served in high-level Justice Department positions, put the effect of Monday鈥檚 ruling this way: 鈥淚t is impossible that this case will be resolved, if ever, before the election.鈥�
In short, he said, Trump got what he wanted: delay
But the former president actually got quite a bit more. The court made clear that if he is re-elected, he will be free to simply order the Justice Department to , and that his pardon power is unlimited.
鈥淢ake no mistake,鈥� said Justice Sonia Sotomayor, in a passionate dissent from bench, 鈥渢he majority gives President Trump all he asks for and more. 鈥�.Whether described as presumptive or absolute, under the majority鈥檚 rule, a president鈥檚 use of any official power for any purpose, even the most corrupt, is immune from prosecution鈥� under this decision, she said.
Even the most private and non-official act鈥攍ike bribery, she said鈥攊s insulated because the president is commander in chief, and under the court鈥檚 rules laid down Monday, even if bribery charges are brought against a former president, prosecutors could not present evidence of a quid pro quo, she said. The money may have been the quid, but the quo was an official act which presumptively is insulated from prosecution.
Justice Amy Coney Barrett broke from her fellow conservatives on this important point, siding with the dissenters. 鈥淭he Constitution,鈥� she said, 鈥渄oes not require blinding juries to the circumstances鈥� of a presidents official, and allegedly illegal, action.
Many constitutional scholars had expected a split decision in Monday鈥檚 case, but few anticipated such a big win for Trump and for Executive power.
鈥淚 just don鈥檛 think anyone imagined that they would draw the line in a way that so clearly put a thumb on the scale for a President and for this particular former president,鈥� said NYU law professor Melissa Murray. For instance, she observed, the court seemed to say that any time the President talked to the Vice President, that conversation was presumptively immune from being disclosed to a jury, regardless of how incriminating it may have been.
鈥淚f I were in the Biden administration,鈥� Murray said, 鈥淚 would be running on this court鈥檚 enormous capacity to stoke chaos.鈥�
Georgetown University law professor Stephen Vladeck seemed to second that view.
鈥淭he next president probably gets to pick at least two, if not three, justices. Do we want that to be Donald Trump or want that to be Joe Biden? he asked, adding that 鈥渢he court did nothing鈥o make itself less of an issue in the election.鈥�
鈥淭he originalists in the room were actually the liberals,鈥� said Yale law professor Akhil Amar, one of the country鈥檚 leading constitutional scholars. He was flabbergasted by the decision, which he maintained is contrary to both the history and the text of the constitution.
Amar said that the court, by barring any consideration of motives in a criminal case against a former president, violated both common sense and the words of the constitution.
鈥淚 don鈥檛 love the criminalization of politics and going after ex-officials, but I think here they really created a Frankenstein, he said. 鈥淭here were ways of avoiding that without going nearly so far as they seemed to do.鈥�
Justice Clarence Thomas, speaking for himself alone, took an even more far-reaching position than the court鈥檚 other conservatives. He would have held the position of special prosecutor in the Justice Department is unconstitutional.
Justice Ketanji Brown Jackson joined Justice Sotomayor鈥檚 dissent, but wrote separately, accusing the majority of planting 鈥渢he seeds of absolute power鈥� for presidents, who until now had been constrained by the law. 鈥淚f one man can be allowed to determine for himself what is the law, every man can,鈥� she wrote, in quoting Justice Louis Brandeis, and 鈥渋t invites anarchy.鈥�
Both Justices Jackson and Sotomayor did not end their dissents, with the usual, 鈥淚 respectfully dissent.鈥� Instead, they simply said they dissented.
Copyright 2024 NPR
