In ruling that Donald Trump and other former presidents enjoy immunity from prosecution for “official acts,” the Supreme Court on Monday gave shockingly short shrift to the principle that no one is above the law. It did so, moreover, in a ruling that divided along partisan lines at a time when the court must contend with complaints that its members are politicians in robes.
It was also frustrating that it took the court so long to hand down a ruling, more than six months after special counsel Jack Smith asked justices to expedite review. Monday’s decision, which came more than two months after oral arguments, doesn’t give Trump everything he wanted and doesn’t derail the federal prosecution of the former president for his outrageous attempts to overturn the results of the 2020 election.
But Chief Justice John G. Roberts Jr.’s majority opinion makes such a prosecution more difficult. It also makes it almost certain that Trump won’t be put on trial before the November election. If Trump wins that election, he could move to abort the prosecution. In that event, justice delayed truly would be justice denied.
Roberts concluded that a former president is “absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority” and also possesses a “presumptive immunity” for acts “within the outer perimeter of his official responsibility.” Prosecutors could rebut presumptive immunity by proving that prosecuting a former president for a particular action would pose no danger of intrusion on the authority and functions of the executive branch.
But the court declined to say whether several actions allegedly taken by the former president would be immune from prosecution, though it did find that Trump enjoyed immunity for one course of conduct described in the indictment — his discussions with Justice Department officials about investigating purported election fraud and sending a letter from the department to various states.
The status of other actions by Trump in furtherance of his scheme will be decided by a lower court. These include his efforts to persuade Vice President Mike Pence to refuse to certify validly cast electoral votes. Roberts said that a lower court must decide whether prosecuting Trump for his lobbying of Pence would pose a danger of intrusion on executive branch authority. A trial court will also decide where other actions by Trump fall along the line between “official” and “unofficial.” The country would have been better served if the court had wrestled with these questions itself to expedite a Trump trial.
Even if Smith is able to prosecute Trump for “unofficial” acts, Roberts said prosecutors couldn’t introduce as evidence testimony or documents related to official acts that were also part of the alleged illegal scheme. (Justice Amy Coney Barrett, a Trump appointee who said Roberts’ opinion was mostly “consistent with my view,” rejected that conclusion.)
This decision comes after the court last week ruled that an obstruction statute used against Jan. 6 defendants — which also figures in the charges against Trump — had been interpreted too broadly. (It’s unclear whether that decision will hobble the case against Trump.)
Roberts expressed strong support in his opinion for presidential prerogatives and worried that a president might shy away from taking decisive action for the good of the country out of fear of being charged with a crime upon leaving office.
That concern seems exaggerated, and it is outweighed by the principle that no American is above the law. As Justice Ketanji Brown Jackson pithily put it, the majority “accepts as a basic starting premise that generally applicable criminal laws do not apply to everyone in our society.”
Whether or not Trump faces a jury of his peers in this case, that is a dangerous idea.
