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Supreme Court shields presidents from prosecution for official acts

Sharply divided 6-3 ruling wipes out part of criminal case against Trump

A protester wears a head band adorned with the face of Special Counsel John L. “Jack” Smith in front of the Supreme Court on Monday.
A protester wears a head band adorned with the face of Special Counsel John L. “Jack” Smith in front of the Supreme Court on Monday. (Bill Clark/CQ Roll Call)

The Supreme Court ruled Monday that presidents are immune from federal prosecution for official acts, in a sharply divided opinion that wipes out part of the case in Washington alleging that former President Donald Trump committed crimes as part of his attempt to overturn the 2020 election.

The 6-3 decision sends the case back to lower courts for more exploration of whether the other charges are official acts for which Trump should be immune, muddling the case and virtually guaranteeing there will be no trial before the November presidential election.

The decision from the six justices on the conservative wing of the court, one of the highest profile in a generation, drew sharp dissents from the three justices on the liberal wing of the court for putting the president “above the law.”

The majority opinion, written by Chief Justice John G. Roberts Jr., said presidents have “absolute immunity” from federal charges for acts taken at the “core” of their constitutional duties, and the possibility of a lesser immunity for official acts outside of that undefined core.

“We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office,” Roberts wrote.

The decision also foreclosed entirely allegations about Trump’s effort to enlist Justice Department officials to spread false information about the 2020 election and sends the case back to lower courts to decide whether other allegations against Trump cover official acts.

That includes whether Trump would be immune in relation to allegations that he encouraged Vice President Mike Pence to reject electors from states he lost, or that he communicated with co-conspirators and with state legislators and election officials in Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin regarding those states’ certification of electors.

“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 wrote. “But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution.”

The decision also stated that prosecutors could not use a president’s official acts as evidence of a crime done as an unofficial act, which legal experts said would hamstring any attempt to prove any charges that could be brought.

Liberals dissent

Justice Sonia Sotomayor filed a dissenting opinion, joined by Justices Elena Kagan and Ketanji Brown Jackson, which accused the majority of inventing “an atextual, ahistorical and unjustifiable immunity that puts the President above the law.”

The majority opinion effectively allows a president to avoid criminal charges if he ordered the military assassination of a political rival or organized a military coup, Sotomayor wrote.

“Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done,” Sotomayor said. “The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.”

Sotomayor, who read from her dissent Monday, argued that the only portion of Trump’s arguments the justices actually rejected was his claims that his impeachment acquittal immunized him from federal charges.

Prosecutors charged Trump in a four-count indictment last year, alleging that he masterminded a broad effort to overturn his loss in the 2020 election. The indictment accuses Trump of trying to stop vote counting in multiple states, organizing slates of false electors for states he lost and encouraging Pence on Jan. 6, 2021, to reject the Electoral College votes from states Trump lost.

The majority opinion said Trump is “absolutely immune” from prosecution for the alleged conduct involving his discussions with Justice Department officials because it is within a president’s exclusive constitutional authority.

“The indictment’s allegations that the requested investigations were ‘sham[s]’ or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials,” the opinion states.

Justice Amy Coney Barrett joined most of the majority opinion, but disagreed over whether juries could consider evidence for acts that were immune from prosecution. She also agreed that removing Justice Department officials fell within the immunity.

Separately, Barrett wrote that several allegations in the indictment fell outside of Trump’s official duties, including his effort to organize false slates of electors and encourage Pence to reject votes from states Trump lost, and could be charged.

“In my view, that conduct is private and therefore not immune,” Barrett wrote in a footnote.

Jackson filed a separate dissent that criticized the majority for inventing the immunity principles it used and making it difficult or impossible to determine whether an act is “official” and thus immune from any criminal prosecution.

She also criticized the justices for setting themselves up as gatekeepers, rather than juries and prosecutors, as to whether a president can face criminal accountability.

Trump has sought to dismiss the charges on multiple arguments, including presidential immunity. After losing, he appealed to the U.S. Court of Appeals for the District of Columbia Circuit and lost there as well. The Supreme Court agreed to hear the case only on the question of Trump’s broad immunity for acts taken while in office.

The appeals have already given Trump one victory in the case, as District Judge Tanya S. Chutkan canceled a planned March trial and kept the case as a whole on hold.

Trump has cast himself as a victim of an “election interference” prosecution by the Biden administration and wrapped his criticism of the case with the other criminal charges against him in Florida, Georgia and New York.

The federal investigations in both Washington and Florida existed before Trump announced his reelection campaign in 2022.

Following Trump’s reelection announcement, Attorney General Merrick B. Garland appointed special counsel John L. “Jack” Smith to lead the probe. Garland has said since that Smith makes his own decisions about how to handle the case, separate from the broader Justice Department.

Justice Clarence Thomas filed a separate opinion criticizing the appointment of Smith as unconstitutional. The trial judge presiding over the allegations against Trump in Florida, connected to his handling of classified documents after his presidency, held a hearing over that issue last month.

Thomas wrote that Smith’s appointment violated the Constitution.

“If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution,” Thomas wrote. “A private citizen cannot criminally prosecute anyone, let alone a former President.”