Supreme Court grants Trump some immunity. Are presidents now above the law?

In a historic ruling on Monday, the U.S. Supreme Court endorsed an expansive view of presidential immunity that appears to protect broad swaths of conduct by the commander in chief from judicial review.

The decision represents a significant victory for former President Donald Trump. Mr. Trump brought the case after lower courts ruled that the Department of Justice may prosecute him over his attempts to overturn the 2020 presidential election before and during the deadly Jan. 6, 2021, Capitol riot.

While the high court rejected Mr. Trump’s claims of absolute criminal immunity, it does say former presidents are entitled to “presumptive immunity” for official acts. The decision all but ensures that the Justice Department’s case won’t go to trial before the 2024 election, when voters again will be choosing between Mr. Trump and President Joe Biden. In the longer-term, the implications also could be quite significant.

The 6-3 decision broke along the court’s ideological divide, which on Monday seemed more like a chasm. The justices disagreed on not just the legal questions at issue, but the broader implications of the case. The public reaction to the ruling has echoed this ideological dissonance.

The court’s conservative supermajority, like GOP officials and right-wing commentators, describe the decision as a moderate and principled defense of executive power against political prosecution. The fiery dissents from the liberal justices, and the reaction from Democrats and the White House, paint the picture of a high court anointing the presidency as an office above the law in perpetuity.

There is no doubt that the decision in Trump v. United States immediately ranks as one of the Supreme Court’s most significant, and its ideological valence will likely affect public trust in the court. But what the ruling means for the central legal issue – the criminal immunity of former presidents – is still unclear.

“It’s a major shift in how we think of the executive branch. It’s more power in the hands of the president,” says Alison LaCroix, a professor at the University of Chicago Law School.

“This presumptive immunity concept that they came up with,” she adds, “really just invites all future presidents to take action and worry about litigation in the courts later, if ever.”

Protection against “enfeebling” the presidency

The Supreme Court has said for decades that former presidents are immune from civil lawsuits related to actions they took while in office. Previously, it has rejected claims that former presidents are immune from prosecution for unofficial acts. In Trump v. U.S. the court faced, for the first time, the question of whether a former president is immune from criminal prosecution.

In lower court proceedings, Mr. Trump argued that he had absolute immunity from the four criminal charges being brought by the Justice Department. Both a district court judge and a panel of judges on the U.S. Court of Appeals for the D.C. Circuit rejected his arguments. The appeals court panel ruled unanimously that “any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”

The Supreme Court decision Monday struck a tripartite middle ground between Mr. Trump’s claims and the D.C. Circuit’s ruling. A former president has absolute criminal immunity for actions “within his conclusive and preclusive constitutional authority”; they are entitled to “at least presumptive immunity” for all “official acts’; but “there is no immunity for unofficial acts.”

The ruling offered limited guidance as to what may constitute an “official” or “unofficial” act. In the case of Mr. Trump’s prosecution, lower courts will now re-examine the case to see if his efforts to overturn the 2020 election fell within his official responsibilities as president. The effective result is that Mr. Trump is unlikely to stand trial for his role in the events leading up to Jan. 6.

“What a huge victory for Trump in that there’s basically zero chance that he’s going to be tried before the 2024 election,” says Dan Urman, a law professor at Northeastern University in Boston, who adds that he was “slightly surprised” at how “deferential” the majority was toward Mr. Trump’s behavior while in office.

Instead, the justices in the majority were more preoccupied by the possibility that its decision paralyzes future presidents from taking important and decisive action. In the majority opinion, Chief Justice John Roberts hit back at the claim that the court was bestowing monarchical powers on the presidency.

“Like everyone else, the President is subject to prosecution in his unofficial capacity. But unlike anyone else, the President is a branch of government,” he wrote. Ensuring that a president can “forcefully” exercise those powers, he added, “does not place him above the law; it preserves the basic structure of the Constitution from which that law derives.”

What Americans should worry about, Chief Justice Roberts warned, is an “enfeebling” of the presidency. With a weaker immunity doctrine, “prosecutions of ex-Presidents could quickly become routine” and trigger “a cycle of factional strife.” Thus, he added, a president “must” be immune from criminal prosecution for an official act unless the government can prove that the prosecution “would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’”

Conservative commentators noted that the Trump v. U.S. decision insulates Democratic presidents as much as it does Republicans. A hypothetical federal prosecution of President Joe Biden would be more difficult to bring now.

But while there is some merit in that fear that presidents could become magnets for criminal prosecution once they leave office, Professor LaCroix says there is a potentially darker consequence on the flip side of that coin.

“What they’re not foregrounding there is the concern about rule of law, about democracy,” she adds.

“Isn’t that just telling the president, ‘Go forward, do whatever you think, and maybe at some later date you’ll be held to account’?” she continues. “The founders also worried a lot about tyranny and despotism. ... The majority to me is not mindful enough of those concerns.”

“With fear for our democracy, I dissent”

The dissenting justices were mindful of those concerns.

In strikingly chilling language, Justice Sonia Sotomayor – writing for herself and Justices Elena Kagan and Ketanji Brown Jackson – described the devastating consequences she fears the ruling could have for American democracy.

The majority opinion “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,” wrote Justice Sotomayor.

“Whether described as presumptive or absolute, under the majority’s rule, a President’s use of any official power for any purpose, even the most corrupt, is immune from prosecution,” she added. “That is just as bad as it sounds, and it is baseless.”

Her dissent featured a list of “official” actions a president could take under the cover of presumptive immunity, from organizing a military coup, to taking a bribe in exchange for a pardon, to the now famous hypothetical of ordering Seal Team 6 to assassinate a political rival.

“The Court effectively creates a law-free zone around the President,” she wrote. Without the traditional “respectfully” wording, she concluded: “With fear for our democracy, I dissent.”

In a slightly lower-key separate dissent, Justice Jackson noted that the court went much further with its majority opinion than the case required.

In lower court proceedings, Mr. Trump claimed that former presidents had absolute immunity from criminal prosecution. Instead of taking up the case as a yes-or-no question, the court agreed to hear the case as to “whether and to what extent” a former president enjoys criminal immunity for official acts. On Monday, Justice Jackson wrote, the majority used that broader question to devise “an entirely new legal framework” for evaluating potential criminal immunity for former presidents.

“The Judiciary serves as a newfound special gatekeeper, charged not merely with interpreting the law but with policing whether it applies to the President at all,” she added.

The majority “seems to have put their trust in our Court’s ability to prevent Presidents from becoming Kings,” she continued. “I fear that they are wrong. But, for all our sakes, I hope that they are right.”

This charged rhetoric from the court’s liberal wing drew special attention from Chief Justice Roberts. He criticized the dissents as “fear mongering on the basis of extreme hypotheticals” and striking “a tone of chilling doom that is wholly disproportionate to what the Court actually does today.”

The opinion in Trump v. U.S. is instead, at bottom, a procedural one, claimed the chief justice. “At the current stage of proceedings in this case,” he wrote, “we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient.”

Actually, says Claire Finkelstein, a law professor at the University of Pennsylvania Carey Law School, the ruling is broader than that.

“It really flies in the face of most of the court’s other jurisprudence in this area. We have an unbroken line of cases ... in which courts are very clear that the president is not above the law,” she says.

Where Barrett differs from the majority

Two specific pages in the decision could be of huge consequence as the Justice Department’s prosecution of Mr. Trump returns to the district court. The court cast significant doubt on whether evidence pertaining to a former president’s official acts would be admissible in a criminal prosecution against him.

To allow a prosecutor to use such evidence would be “to eviscerate the immunity we have recognized,” wrote Chief Justice Roberts, before reinforcing the argument that former presidents should have heightened protection from the evidentiary processes other Americans are subject to.

“The prosaic tools on which the government would have courts rely are an inadequate safeguard against the peculiar constitutional concerns implicated in the prosecution of a former president,” he added. “Such tools may suffice to protect the constitutional rights of individual criminal defendants,” but presidential immunity interests “seek to protect not the President himself, but the institution of the Presidency.”

Justice Amy Coney Barrett joined the entire majority opinion except for that section. In a separate concurrence, she laid out – in more detail than the majority opinion – how a criminal immunity claim by a former president could be adjudicated. The Constitution, she wrote, “does not insulate Presidents from criminal liability for official acts.” 

The president can challenge whether or not an alleged criminal act was “official” or not, she added. “If that challenge fails, however, he must stand trial.”

As Republican-appointed justices divided sharply with Democratic-appointed justices on the Supreme Court, so too in the political realm.

Democrats expressed near-universal concern about the decision – and said it further raised the stakes of the 2024 election.

“It just puts a finer point on the fact that if Donald Trump gets anywhere near the Oval Office again, he will rule as a dictator, he will use his power to harm his political enemies, he will continue to incite political violence, and that is something that we cannot afford,” Quentin Fulks, deputy campaign manager for the Biden campaign said on a press call.

Mr. Trump has made it clear in recent months that if he wins, he plans to erode the traditional independence of the Department of Justice.

In an April TIME Magazine interview, Trump said he might fire U.S. attorneys if they refuse an order from him to prosecute someone. His allies have drawn up plans to pack the DOJ with stalwart allies who would be unlikely to reject controversial orders from Mr. Trump and restructure the department to empower political appointees rather than career officials.

Mr. Trump has said he would appoint a “special prosecutor” to “go after” President Biden and his family. He also spent years saying that Hillary Clinton should be in jail, leading "lock her up" chants, though he didn't attempt to follow through on that threat during his presidency.

During the final days of his presidency, Mr. Trump attempted to appoint Jeffrey Clarke, a little-known DOJ official, as acting attorney general in order to help further his attempts to stay in office. He only backed down when a number of his top attorneys threatened to resign in protest. (Because it concerns an official appointment, experts believe this episode will likely be considered official conduct.)

If he does return to the White House, any federal prosecution of President Biden may now struggle to launch. But after the Supreme Court ruling on Monday, at least, Mr. Trump and his allies were giddy.

“BIG WIN FOR OUR CONSTITUTION AND DEMOCRACY. PROUD TO BE AN AMERICAN!” Mr. Trump posted to his Truth Social account.