Trump Is Immune From Criminal Prosecution for Official Acts, Supreme Court Rules
WASHINGTON, D.C. — Former President Donald Trump is immune from criminal prosecution for official acts he allegedly committed during his tenure, the U.S. Supreme Court ruled Monday in a landmark decision that could shield Trump from the indictments against him and dramatically redefine the limits of presidential power.
The 6-3 decision comes months after oral argument in April, during which Trump’s lawyers and a team led by Department of Justice (DOJ) special counsel Jack Smith debated the extent to which immunity covers an official presidential act.
In its opinion, the Court determined that while the president doesn’t enjoy immunity for unofficial acts, he is at least entitled to presumptive immunity from prosecution for his official acts. “That immunity applies equally to all occupants of the Oval Office,” the decision says.
It’s unclear exactly how Smith’s team will proceed, or how the ruling will impact the other indictment against Trump in Georgia.
Legal experts have stressed how crucial the outcome of this case is on Trump’s legal fights and the future of American democracy. A decision granting Trump absolute immunity gives the presidency unprecedented protection, experts have told Democracy Docket, essentially allowing presidents to act without the threat of criminal prosecution during or after their term.
At issue is a federal criminal indictment against Trump in connection with his alleged effort to overturn the results of the 2020 presidential election, a scheme that culminated in the Jan. 6 attack on the U.S. Capitol by a mob of Trump supporters.
The nature of presidential power requires that a former president “have some immunity from criminal prosecution for official acts during his tenure in office,” the opinion says. “At least with respect to the president’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is entitled to at least presumptive immunity.”
Authored by Chief Justice John Roberts, the opinion indicates that the federal government must further distinguish between official and unofficial acts under the Supreme Court’s guidelines. The Court remanded the case back to the U.S. District Court to assess some of the claims, such as allegations that Trump pressured Vice President Mike Pence to block certification of Joe Biden’s win, which the Court says involves official conduct. “… Trump is at least presumptively immune from prosecution for such conduct,” the opinion states.
Trump’s arguments in favor of immunity relied on his interpretation of the U.S. Constitution, which he argued only gives Congress — not the courts — the authority to sit in judgment over his official acts (through the impeachment process). At oral argument on April 25, when asked by Justice Clarence Thomas to explain the source of his immunity claims, Trump attorney John Sauer cited Article II of the Constitution, which states that “the executive power shall be vested in a president of the United States of America,” POLITICO reported.
On the other hand, attorney Michael Dreeben, who argued for Smith and the DOJ, told the Court during oral argument that “there is no immunity that is in the Constitution, unless this Court creates it.” Smith’s team argued in its briefs to the Court that granting Trump full immunity from criminal prosecution would “usher in a regime that would have been anathema to the Framers.”
Up until the Supreme Court’s decision today, Trump’s immunity claims had failed in the lower courts. In December, the federal judge overseeing the case denied Trump’s immunity claims, stating in her opinion that former presidents “enjoy no special conditions on their federal criminal liability.” In upholding that opinion, a federal appeals court held that “any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”
In her fiery dissent, Justice Sonia Sotomayor wrote that today’s decision “reshapes the institution of the Presidency” and “ makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.”
“Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop. With fear for our democracy, I dissent.”
According to SCOTUS blog, some conservative justices on the Court had seemed open to the notion that establishing no criminal immunity for a former president could leave future presidents vulnerable to partisan political prosecution, an argument made by Republican state attorneys general who submitted amicus briefs in support of Trump.
Oral argument also involved a number of hypotheticals about what a president might be allowed to do if they are covered by absolute immunity from criminal prosecution. Justice Sonia Sotomayor, for example, asked how immunity applies if a president orders the military to stage a coup, to which Sauer, after being pressed by Sotomayor, wouldn’t explicitly call it an official act, telling the justice: “If it’s an official act, there needs to be impeachment and conviction beforehand …”
Trump was unable to attend the hearing because he was required to stand trial in New York for another of the four criminal indictments he’s facing. In that case, Trump was charged with falsifying business records in connection with a so-called “hush money” payment made to adult film actress Stormy Daniels in 2016. A jury in May found him guilty of 34 felony counts, and his sentencing is scheduled for July 11.
Today’s ruling will likely enhance the scrutiny dogging the Court in recent years over its decisions and the conduct of some of its justices. In May, for example, Justice Samuel Alito made national headlines when the New York Times revealed that his wife flew an upside down flag — an image associated with the “Stop the Steal” movement — days after the Jan. 6, 2021, attack on the U.S. Capitol.
The Times also reported that a second flag was flown at Alito’s New Jersey vacation home in July and September of 2023. The second flag reportedly featured the words “Appeal to Heaven,” and is associated with the Christian nationalism movement.
The revelations prompted calls for Alito to recuse himself from the Trump immunity case. Sens. Dick Durbin (D-Ill.) and Sheldon Whitehouse (D-R.I.) sent a letter to Chief Justice John Roberts requesting that he take steps to ensure that Alito recuses himself in any cases related to the 2020 presidential election and Jan. 6, 2021 attack on the U.S. Capitol “including the question of former President Trump’s immunity from prosecution for his role in the events of January 6th in Trump v. United States.”
In a letter responding to the senators, Alito said he would not recuse himself, reiterating that his wife — and not the justice — was the one who flew the flags.