Supreme Court Gives Trump Immunity For Official Acts, Threatening Jan. 6 Prosecution

In a 6-3 decision, the Supreme Court Monday ruled that presidents get “presumptive immunity” for official acts they took as president, a decision with sweeping implications both for executive authority and holding former President Donald Trump accountable.

Chief Justice John Roberts, writing for the majority, added that “there is no immunity for unofficial acts.”

The three liberal justices dissented. Justice Amy Coney Barrett only joined the majority in part, and also wrote a solo concurrence. Justice Clarence Thomas also wrote a concurrence alone, and Justice Ketanji Brown Jackson wrote an additional dissent.

“Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune,” Sotomayor summed up the majority ruling.

Roberts wrote that Trump’s theory of immunity is much broader than the Court’s, but that the government’s theory of presidential exposure is also much too broad — arriving at a place that significantly hobbles special counsel Jack Smith’s prosecution. Under the ruling, some of Smith’s charges will be nixed, but some may survive. Either way, the process will be long and arduous, cementing that this case can’t reach its conclusion before the 2024 election — Trump’s goal all along, in which the Court was a willing helpmate. 

Perhaps most damningly for Smith’s way forward, Roberts ruled that prosecutors cannot use conversations involved in the protected “official acts” to prove knowledge or intent in the prosecutable unofficial ones. 

“Testimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial,” he wrote.

Barrett broke with the majority in her concurrence on that new evidentiary standard, writing that she agrees with Sotomayor in opposing it. She also revealed that she considers at least some of the charges — naming Trump’s pressure campaign against state officials to overturn their elections and his fake elector scheme — fair game for prosecution. 

Sotomayor emphasized in her dissent that the Court’s decision is nothing less than a win for Donald Trump.

“Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law,” she wrote. “Relying on little more than its own misguided wisdom about the need for ‘bold and unhesitating action’ by the President, the Court gives former President Trump all the immunity he asked for and more.” 

She added that the majority, despite its protestations, arrived at a more expansive reading of presidential immunity than Trump’s. Trump, at least, supported the (convenient) idea that a former President could be prosecuted if he was impeached and convicted first. For the majority, even in that circumstance, the former President would still be entitled to “at least presumptive” criminal immunity for those acts.

In response, Roberts chided the dissenters for striking “a tone of chilling doom that is wholly disproportionate to what the Court actually does today.”

Roberts directed the lower court to sort through Smith’s indictment, to sift official acts from unofficial ones. He tipped his hand though, classifying some of the charges himself. 

Trump’s attempts to leverage the Justice Department to convince states to replace their electors with fake ones — and his threats to replace the acting attorney general — fall under the purview of official acts, so Trump cannot be prosecuted for them. 

“Because the President cannot be prosecuted for conduct within his exclusive constitutional authority, Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials,” Roberts wrote.  

Other charges are less clear, he wrote, turning to Trump’s pressuring of then-Vice President Mike Pence to overturn the election results. 

“The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct,” he wrote. “The question then becomes whether that presumption of immunity is rebutted under the circumstances.” 

Roberts left it to the district court to decide whether Trump’s Pence pressure campaign posed “any dangers of intrusion on the authority and functions of the Executive Branch.”

Similarly, the lower court will have to decide whether Trump’s pressuring of state officials to reverse the election results in their states qualifies as official or unofficial acts. 

Sotomayor wrote that the majority created three new standards that will make presidents practically immune from criminal liability. The Court’s finding of absolute immunity for “core constitutional powers,” she argued, has already been so stretched “beyond any reasonable bounds” as to give the President extremely broad protection. Second, the expansive immunity for all official acts means that “a President’s use of any official power for any purpose, even the most corrupt, is immune from prosecution,” she wrote. Third and perhaps most shockingly, the ruling prevents prosecutors from using a President’s official acts to prove intent in nonofficial ones — making it even more difficult to make the case on whatever slim slice of conduct is left outside the immunity purview.

Calling the immunity decision one made by “brute force,” Sotomayor also ticked through historical episodes to prove the decision atextual: “It seems history matters to this Court only when it is convenient,” she quipped. 

She also reupped a refrain from the liberals at oral argument: the threat of chilling presidential behavior with a more limited ruling (a threat somewhat mitigated by the fact that presidents up to this point assumed they were liable for criminal prosecution after their terms) pales in comparison to the threat of a president unbound.

In her additional dissent, Jackson made a crucial point: the majority went much, much further than it had to to decide the question before it (the notion of judicial restraint, a passe one in this Court). 

“Petitioner’s argument in both the lower courts and this one was that a former President is categorically immune from federal criminal prosecution for ‘all’ acts within the outer perimeter of his official duties,” she wrote. “Thus, it would have been enough for the Court simply to reject petitioner’s categorical claim and leave it at that. But the majority sua sponte rephrased the question presented, and it now takes full advantage of this opportunity to devise from whole cloth an entirely new legal framework for judicial evaluation of potential criminal immunity for former Presidents.”

She also pointed out that judges themselves will have a massive new burden under the Court’s system. Previously, a prosecutor would decide whether to seek punishment for violations of criminal laws, and would have to present those findings to a jury to proceed. Now, courts will have to do their own gatekeeping — quite possibly making the prosecutor and jury completely irrelevant —  to determine whether the charges are prosecutable in the first place. 

Thomas concurred to push a point he made during oral argument: that Jack Smith, and all special prosecutors, are unconstitutionally appointed. By Thomas’ lights, the prosecution is illegal and can’t continue at all. Justice Brett Kavanaugh showed some interest in this point during the arguments (he had previously worked for a special prosecutor, Ken Starr), but Thomas wrote solo. 

Read the ruling here: