On July 1, the Supreme Court ruled that presidents and former presidents enjoy “absolute immunity” from criminal prosecution for “conduct within his exclusive sphere of constitutional authority,” setting guidelines for which acts in former President Donald Trump’s federal election case can remain in the indictment but leaving large amounts of litigation for the district court.
The case, which has been on hold since December 2023, is unlikely to proceed to trial before the November election but may soon see a flurry of legal activity.
Chief Justice John Roberts wrote the majority opinion, with Justice Clarence Thomas adding his own concurring opinion. Justice Amy Coney Barret concurred in part, noting several lines of legal disagreement with the majority. Justice Sonia Sotomayor wrote the dissenting opinion, joined by Justices Elena Kagan and Ketanji Brown Jackson, who also penned a separate dissent.
Trump Case Will Continue
The Supreme Court has given the case back to the U.S. District Court of the District of Columbia, where Judge Tanya Chutkan will have to determine whether several of President Trump’s actions in the indictment were, essentially, official or unofficial.
“Despite the unprecedented nature of this case, and the very significant constitutional questions that it raises, the lower courts rendered their decisions on a highly expedited basis,” the opinion reads.
Both the district and circuit courts completely rejected assertions of presidential immunity, so there has been no briefing on whether actions in the indictment were official or unofficial.
“That categorization raises multiple unprecedented and momentous questions,” the opinion reads.
When Judge Chutkan rejected the motion to dismiss based on presidential immunity last year, the appeals court fast-tracked the appeal, rejected the motion, and also fast-tracked the appeal process to the Supreme Court.
All case proceedings were paused in the meantime, and Judge Chutkan had taken the case—originally scheduled for March 4—off her calendar. At the time, the judge still had a number of motions to rule on, including a major ruling on what evidence and arguments could be used at trial.
Now Judge Chutkan will have to sort out what actions must be removed from the indictment before the case can continue. This may not necessarily be a quick process; as court filings by both parties have shown, the defense and prosecution have clashing theories as to whether certain acts were official or unofficial.
Prosecutors have acknowledged that some of the acts in the indictment were indeed the official acts of a president, and it has largely been expected that special counsel Jack Smith may trim down the indictment so as to proceed with the case with minimal holdup.
Supreme Court Sets Some Guidelines
The special counsel has charged former President Trump with four counts of conspiracy and obstruction for his actions to challenge the 2020 election results.
Crucially, the Supreme Court decision does not throw out any of these charges.
However, several actions involved in some of the charges may need to be tossed. The majority opinion finds that presidents have absolute immunity for core constitutional powers and presumptive immunity for other official acts. This immunity does “not extend to conduct in areas where his authority is shared with Congress,” and unofficial acts taken while in office receive no immunity at all.
The court ruled that President Trump’s conversations with the acting attorney general were core conduct subject to absolute immunity.
It also ruled that his conversations with the vice president about the counting of the votes were part of his official duties, thus subject to presumptive, but not absolute, immunity—finding that Judge Chutkan should now assess whether prosecution of these actions intrudes on the authority and functions of the executive branch, and prosecutors will have to rebut the presumption of immunity if so.
The court then found that President Trump’s conversations with state officials and other parties require more fact finding as to whether the actions were official or not—another task for the district court.
It offered similar guidance regarding President Trump’s speech on and leading up to Jan. 6, 2021. Some speech falls within the outer perimeter of official responsibilities, but there are contexts in which presidents speak unofficially, the majority opinion reads.
The Supreme Court also ruled that courts “may not inquire into the President’s motives” while considering whether an action was official or unofficial, as this “highly intrusive” line of inquiry could expose official conduct to judicial examination, a violation of the separation of powers.
The court remanded the case for the district court to “carefully analyze” whether the indictment’s remaining allegations are free from official acts and ruled that testimony or private records probing the president’s or his advisers’ official conduct may not be used as evidence at trial.
Court Tosses Impeachment Theory
Although the Supreme Court ruling could be read as a win for the former president (he posted on social media shortly after the decision, “BIG WIN FOR OUR CONSTITUTION AND DEMOCRACY”), the court rejected his attorneys’ legal theory.
Former President Trump’s attorneys had argued that presidents must be impeached before they are subject to prosecution on those same actions and that former President Trump’s acquittal in the Senate thus precluded prosecution, warranting dismissal of the indictment.
The high court majority had instead relied on views of the framers of the Constitution regarding the separation of powers to reach their opinion and dismissed the impeachment argument as one with little constitutional support.
However, the court agreed with the Trump attorneys in that “the ‘bold and unhesitating action’ required of an independent Executive” must not be chilled.
Majority Emphasize Need for Strong Executive
Chief Justice Roberts, writing for the majority, emphasized that the Framers of the Constitution had the vision of a strong executive. Unlike the other two branches, the president is “the only person who alone composes a branch of government,” he wrote, citing his previous opinion from an unrelated Trump case.
The court—and the Framers—have held an “energetic executive” to be crucial to national security, good government, and the safeguarding of liberty.
Prosecutors and dissenting judges had argued that the criminal justice system inherently includes safeguards that would prevent the wrongful prosecution of a president or chilling effects that may stem from this possibility.
The majority held that this was not protection enough, as the mere prospect of prosecution may “distort Presidential decisionmaking” and cause “undue caution,” effectively undermining the independence of the executive branch.
“The hesitation to execute the duties of his office fearlessly and fairly that might result when a President is making decisions under ‘a pall of potential prosecution’ … raises unique risks to the effective functioning of government,” the opinion reads.
4 Justices Say Official Acts Can Sometimes Be Unconstitutional
All nine justices recognized immunity for a president’s exercising of “core constitutional powers,” but four found the majority’s test to be far too broad.
Justice Barrett, in her partly concurring opinion, and Justices Sotomayor, Kagan, and Jackson, in a dissenting opinion, wrote that there may be cases in which official acts are unconstitutional or criminal and should be subject to prosecution.
Justice Barrett wrote in favor of a narrower test for immunity, with a two-step process to determine the validity of criminal charges for official acts. The first is determining whether the criminal statute applies to the president, and the second step is to determine if that prosecution imposes any danger of intruding on the powers of the executive branch.
Justice Sotomayor wrote that the court’s ruling gave the appellant even more immunity than he asked for, finding no support for immunity from criminal prosecution outlined in the Constitution.
The dissenting opinion, joined by two other justices, takes a reproving view of President Trump’s actions on Jan. 6, 2021, and, as outlined in the indictment, also the majority opinion.
Justice Sotomayor wrote that the challenge of exercising core constitutional powers, such as the president’s veto power, was never challenged in the indictment. As the majority defines “core immunity,” “all sorts of noncore conduct” could be shielded from criminal prosecution, she wrote, including “nightmare scenarios” such as ordering the military to carry out an assassination of a political rival, organizing a military coup, or taking a bribe in exchange for a pardon.
Case May Return to Supreme Court
This case may yet end up in the Supreme Court on another appeal.
Trump attorneys can be expected to challenge unfavorable district court rulings on whether certain acts were official or unofficial, and Judge Chutkan still has several pending motions to rule on—including other motions to dismiss the indictment.
An additional complication that could arise for prosecutors is the fact that Mr. Smith is prosecuting a second case against former President Trump in the Southern District of Florida, where a federal judge is set to rule on whether Mr. Smith was constitutionally appointed. Should the judge determine that he wasn’t and that the special counsel has no authority to prosecute, an appeal could end up before the Supreme Court, affecting both cases.
Ruling May Affect Georgia Election Case
Former President Trump was indicted in a similar case in Georgia. In the state case, he and 18 others were charged with racketeering for their actions in challenging the 2020 election results, and some of the acts listed in the indictment overlap with the federal case.
While the federal case charges no alleged co-conspirators, the state case also charges former Justice Department official Jeffrey Clark for actions that he has argued were part of his official duties.
That case is currently on hold, as the Georgia Court of Appeals has agreed to review the trial court’s decision to not disqualify the Fulton County District Attorney Fani Willis from prosecuting the case over alleged misconduct.
Should the appeals court rule quickly after it hears oral arguments in October and then decide not to disqualify the district attorney, prosecutors will still need to revisit the indictment to remove any official acts before proceeding with the case.
