The Supreme Court ruled on Monday that Donald Trump is immune to criminal prosecution for official acts taken while in office, but affirmed that he can be prosecuted for unofficial acts, in a decision that will likely further delay special counsel Jack Smith’s prosecution of the former president for attempting to overturn the results of the 2020 election.
In a 6-3 decision written by Chief Justice John Roberts and decided along ideological lines, the Court held that there is a critical distinction between public and private acts taken in office and returned the Trump case to a lower court for additional analysis and fact-finding.
“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. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts,” Roberts wrote.
Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson dissented from the majority opinion.
“Today’s decision to grant former presidents criminal immunity reshapes the institution of the presidency,” Sotomayor wrote. “It makes a mockery of the principle, foundational to our Constitution and system of government, that no man is above the law.”
Trump’s legal team appealed Smith’s criminal prosecution in Washington, D.C., on the grounds that Trump enjoyed absolute immunity for his effort to overturn the 2020 presidential election and his apparent role in the January 6 Capitol riot. Two lower courts have already rejected those claims.
The presidential-immunity appeal delayed Trump’s D.C. case as Smith pushes for a trial ahead of the 2024 presidential election, in which Trump is the presumptive GOP nominee. The Monday Supreme Court decision makes a pre-election trial unlikely because both sides will argue over the scope of what consists of an official act.
Trump communicated with then-vice president Mike Pence over whether he would carry out his constitutional obligation and join Congress to certify the 2020 presidential election results. The Supreme Court will allow the district court to assess whether those communications were official or unofficial acts.
The D.C. district court will also decide on whether Trump’s communications with state officials and his role in January 6th constituted official acts, given the president’s broad power to speak publicly on a wide array of issues.
Trump’s discussions with Justice Department officials fall under the scope of the Supreme Court’s immunity ruling, Roberts asserted. As a result, Trump is absolutely immune from prosecution over his alleged communications with Justice Department officials related to contesting the 2020 election.
Roberts stated that “Trump asserts a far broader immunity than the limited one we have recognized,” and downplayed the dissenters’ doomsday rhetoric over the immunity ruling.
“As for the dissents, they strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today—conclude that immunity extends to official discussions between the President and his Attorney General, and then remand to the lower courts to determine ‘in the first instance’ whether and to what extent Trump’s remaining alleged conduct is entitled to immunity,” Roberts said.
In his concurrence, Justice Clarence Thomas questioned the legal basis of Smith’s special counsel appointment, and asserted that the issue must be settled before Smith’s case against Trump moves forward.
The D.C. district court may also reconsider Trump’s two obstruction charges following the Supreme Court’s ruling last week limiting the Justice Department’s ability to prosecute January 6th defendants for allegedly obstructing official proceedings during the Capitol riot.
In April, the Justice Department and Trump’s attorneys conducted oral arguments for the presidential-immunity case, and Justice Ketanji Brown Jackson appeared highly skeptical of Trump’s immunity challenge.
The Justice Department sought to keep Smith’s prosecution outside of any immunity standard while protecting President Joe Biden and strengthening the department’s authority. Trump’s attorneys argued that Trump’s efforts to overturn the 2020 election after leaving office were also covered by presidential immunity.
A federal grand jury indicted Trump last summer on four felony counts based in large part on Trump knowingly spreading false claims about the 2020 presidential election results. After narrowly losing the 2020 presidential election, Trump repeatedly denied the outcome by falsely suggesting the election was rigged and the votes were manipulated. All of Trump’s legal challenges to the 2020 election went nowhere in court.
Smith’s case against Trump in Washington, D.C., is one of four prosecutions Trump is fighting as he runs his 2024 campaign against incumbent President Joe Biden.
Trump was convicted in May on 34 counts of falsifying business records in New York related to reimbursements to former Trump attorney Michael Cohen for his $130,000 payment to silence porn actress Stormy Daniels ahead of the 2016 presidential election. Judge Juan Merchan, a donor to Biden’s 2020 campaign, scheduled Trump’s sentencing to take place in July right before the Republican national convention.
Manhattan district attorney Alvin Bragg, an elected Democrat, used a novel legal theory to bypass the statute of limitations and elevate the business records charges to felonies for supposedly covering up underlying campaign finance crimes.
Fulton County district Attorney Fani Willis is prosecuting Trump and a group of co-defendants in Georgia over the Trump campaign’s attempt to overturn the state’s 2020 election outcome. The case is delayed until a Georgia appeals court rules next spring on whether Willis can continue prosecuting the case despite her romantic relationship with former special prosecutor Nathan Wade.
Smith is also prosecuting Trump in Florida for his alleged mishandling of classified documents and apparent obstruction of the federal government’s attempts to obtain those documents. Trump is facing 40 criminal counts in the classified documents case, the bulk of them being espionage act charges for Trump’s alleged possession of classified military secrets.
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