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SUPREME COURT UPHOLDS ‘ABSOLUTE IMMUNITY’ FOR PRESIDENTS IN TRUMP CASE

Fred Lucas | July 01, 2024
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The Supreme Court issues a decision on former President Donald Trump's
presidential immunity. Pictured: Trump appears in court May 20 during his "hush
money" trial in Manhattan Criminal Court for allegedly covering up a 2016
payment to porn star Stormy Daniels. (Steven Hirsch/Getty Images)



Fred Lucas / @FredLucasWH

Fred Lucas is chief news correspondent and manager of the Investigative
Reporting Project for The Daily Signal. He is the author of “The Myth of Voter
Suppression: The Left’s Assault on Clean Elections.” Send an email to Fred.

The Supreme Court ruled 6-3 in Donald Trump’s favor in the presidential immunity
case, complicating at least two prosecutions against the 45th president.  

“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 in the high court’s
majority opinion. “And he is entitled to at least presumptive immunity from
prosecution for all his official acts. There is no immunity for unofficial
acts.”

The ruling, issued Monday, involves the federal prosecution of Trump for
challenging the outcome of the 2020 presidential election, but it also could
affect a case in Fulton County, Georgia, in which Trump faces charges of
conspiracy to overturn the results of the race in the state. 

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The ruling complicates special counsel Jack Smith’s prosecution of Trump
centered on the Capitol riot of Jan. 6, 2021, as well as the Fulton County case
against Trump for challenging the election outcome in Georgia. 



The high court returned Trump’s federal election case to the lower trial court
to determine what aspects of the Smith indictment against Trump in the election
case will stand. Specifically, the court ruled that Trump’s interaction with
then acting Attorney General Jeffrey Rosen fell under the scope of presidential
immunity from prosecution. Yet the court ruled that other interactions with
executive branch officials such as Vice President Mike Pence and nonexecutive
branch officials may or may not fall under presidential immunity and the lower
court must adjudicate these questions.

Trump’s lawyers argued that the 45th president—and any president—has absolute
immunity from prosecution for official acts pertaining to his office. In this
case, Trump’s attorneys contended that he was acting in his official capacity as
president—not simply as a candidate—in fighting what he believed was a dishonest
election. 

“The president enjoys no immunity for his unofficial acts, and not everything
the President does is official. The President is not above the law,” Roberts
asserted in the majority opinion. “But under our system of separated powers, the
president may not be prosecuted for exercising his core constitutional powers,
and he is entitled to at least presumptive immunity from prosecution for his
official acts. That immunity applies equally to all occupants of the Oval
Office.”

Justice Sonia Sotomayor wrote the dissent.

“Today’s decision to grant former presidents criminal immunity reshapes the
institution of the presidency,” Sotomayor argued. “It makes a mockery of the
principle, foundational to our Constitution and system of government, that no
man is above the law.”

The high court’s ruling also comes after amid Trump’s conviction in New York
over “hush money” paid to former porn actress Stormy Daniels—based on charges
from before Trump was president. A second federal case in Florida, run by Smith,
over the former president’s possession of classified documents regards alleged
conduct after leaving office. These cases won’t likely be affected by the high
court ruling.

Across four separate indictments, Trump faced a total of 91 state and federal
charges.

The court specifically notes that Trump’s conversations 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.”

Among the most well-known post-2020 election controversies involved Trump
attempting to pressure then-Vice President Mike Pence to stall or reverse a
joint session of Congress from certifying Joe Biden’s Electoral College
victory. The high court remanded the question of Trump’s immunity on this back
to the district court to further clarify.

“Whenever the president and vice president discuss their official
responsibilities, they engage in official conduct,” the majority says.
“Presiding over the January 6 certification proceeding at which members of
Congress count the electoral votes is a constitutional and statutory duty of the
vice president.”

The murkier area dealt with Trump’s interaction with nonexecutive branch
officials, the majority found. The indictment says Trump worked with
coconspirators to develop an alternative slate of electors to obstruct the
certification process. Trump’s team argued this was an official act to protect
the proper administration of a federal election. 

“Determining whose characterization may be correct, and with respect to which
conduct, requires a fact-specific analysis of the indictment’s extensive and
interrelated allegations,” the majority says. “The court accordingly remands to
the district court to determine in the first instance whether Trump’s conduct in
this area qualifies as official or unofficial.”

Trump’s attorneys argued that the only exception from presidential immunity
would be if Trump were impeached and removed from office, in which case he then
could be charged with the offense in a separate criminal case. 

That’s because what is known as the Constitution’s impeachment judgment clause
stipulates that a president “convicted” by the Senate in an impeachment trial is
“subject to Indictment, Trial, Judgment, and Punishment, according to Law.”
Although the House impeached Trump a second time shortly before he left office
in 2021, the Senate acquitted Trump in a trial after he left office. 

During questioning, Justice Amy Coney Barrett had suggested that the solution
might warrant a legal test to set parameters for what is a private and what is
an official act. 

In oral arguments April 25 before the nine justices, Michael Dreeben argued the
case on behalf of Smith, the government’s special counsel, while lawyer John
Sauer argued on behalf of Trump. 

Sauer argued that “there can be no presidency as we know it” without immunity,
since presidents would be reluctant to carry out their duties for fear of
prosecution by a subsequent administration. 

The immunity is based on the Constitution’s executive vesting clause and the
corresponding principle of separation of powers, he said.

The Justice Department, which appointed Smith as special counsel, argued that a
president isn’t entitled to immunity from prosecution even for official actions.
During oral arguments, however, Dreeben qualified the argument by saying
presidents have some “special protection” and could raise it as a defense if
prosecuted. 

The Supreme Court ruled in its 1982 Nixon v. Fitzgerald decision that presidents
have absolute immunity in civil cases for official actions taken as president. 

In February, a three-judge panel of the U.S. Court of Appeals for the District
of Columbia rejected Trump’s immunity claim. 

Separately, the high court is considering a case involving defendants charged in
the Jan. 6 Capitol riot. At issue is whether a federal statute used to prosecute
them may be used under a broad reading or instead was designed to cover narrower
acts. 

SCOTUS-Presidential-ImmunityDownload


RELATED POSTS:

 1. Trump Convicted: So What Happens Now?
 2. Big Questions Before Supreme Court in Trump’s Presidential Immunity Case
 3. How the Left Tried to Use Stormy Daniels to Impeach Trump

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