Photo: Jabin Botsford/The Washington Post via Getty Images
We now have the Supreme Court’s immunity decision and — wow.
In large part, it’s what we expected and forecast in this space. But the Court’s opinion expands presidential power (and bolsters Trump’s legal defenses) substantially more than anybody reasonably predicted.
There’s a lot here, so let’s break down today’s decision. Here are the biggest takeaways.
Criminal immunity exists. This is, in itself, a headline. We’ve recognized civil immunity — protecting federal officials from lawsuits for their official, on-the-job actions — since the 1982 Supreme Court decision Nixon v. Fitzgerald. But, until today, it remained an open question whether there even was such a thing as criminal immunity. Now we know: There is.
Criminal immunity is not “blanket” or “absolute” — but it’s pretty darn broad. This has mostly been a problem of nomenclature. It’s easy to scoff at a claim that a president is immune (absolutely!) for everything he does from the moment he takes the oath of office at noon on January 20 until his term ends four years later. But, in reality, Trump’s team made no such argument to the Supreme Court, though it did (unwisely) float it below. Rather, his team argued for a more limited form of criminal immunity, which the Supreme Court has now accepted and then some. He’s immune, in many circumstances (more on this in a moment) — but no president or former president has all-encompassing, “blanket” coverage.
It all depends on whether the president’s actions were official or unofficial. As expected, and roughly parallel with civil immunity, a president is criminally immune for official acts taken within the scope of the job. But there are two crucial kickers here.
First, the Court will construe the job description quite broadly in the president’s favor. According to the decision, the boss is immune for anything within “the ‘outer perimeter’ of the President’s official responsibilities, covering actions so long as they are ‘not manifestly or palpably beyond his authority.”
Second, while a president cannot be indicted for his official acts, a prosecutor cannot even introduce evidence of any official act as part of a prosecution. So, for example, in DOJ special counsel Jack Smith’s 2020 election subversion case, the Court made clear that Trump’s contacts with the Justice Department (to try to arm-twist prosecutors to investigate and find election fraud) are within the scope of the job and cannot play any part in Smith’s presentation of evidence of the jury, even if necessary to explain the entire sequence of events in a coherent manner.
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A president (probably) cannot order SEAL Team Six to assassinate a political rival and get away with it. As we discussed in a recent column, the SEAL Team Six hypothetical — and Trump’s claim that he could be indicted only if he was first impeached by the House and convicted by the Senate — oversimplified and distorted the actual legal issue at hand. I wrote then, “Count on the Supreme Court blowing past the impeachment argument and rejecting it out of hand. But that won’t end the inquiry. Look for the Court to consider, and potentially to create, a criminal-immunity test based roughly on whether conduct falls within or beyond the president’s official job responsibilities.” That’s essentially what has now happened. Justice Sonia Sotomayor argues that the Court’s ruling would permit a president to order an assassination without consequences, but I respectfully dissent from that dissent. I don’t see any way a court concludes that such a plot would be an “official act” within the scope of the job. I might be wrong; we don’t know. Justice Sotomayor is right to at least highlight the dilemma.
This trial will not happen before the election. It’s over, folks. The chances of a pre-election trial on Smith’s 2020 election indictment have now slipped from “unlikely but possible” to flat-out zero. That’s because the Court sent the case back down to the district court with instructions to hold a hearing to determine which acts are within or beyond the scope of the presidency. Okay, so can’t Judge Tanya Chutkan hold that hearing in the next couple weeks and get this thing back on track for an early fall trial? Nope. Because the Supreme Court went out of its way to specify, several times over, that Trump has the right to appeal the trial judge’s determinations on this issue before the trial. That’ll blow this case out until well after the November 2024 election.
All four Trump criminal cases are in trouble to varying degrees. Smith’s 2020 election case won’t happen before the election — or maybe even in 2025, given that he can go through the whole appeal process again — and his indictment will look like Swiss cheese once all the official acts are removed. Fulton County district attorney Fani Willis’s election-subversion indictment was already circling the drain on its own demerits, and now it faces the same immunity problems as Smith’s case. Trump also has claimed immunity in Smith’s federal classified-documents case and, while it’s tough to imagine how he could be immune for conduct that occurred entirely after he left office, Trump will have a renewed argument that he obtained the government documents in the first place as part of his job as president. Even the Manhattan hush-money conviction now stands in doubt. Watch for Trump to argue that some of the evidence admitted against him — including conversations he had with White House adviser Hope Hicks, while he was in office in 2017 — is entitled to immunity and was wrongly admitted at trial. It’s all a big mess, far more so now than it was yesterday.
We all cherish the slogan “No person is above the law.” But now we need to add a rejoinder: “Except, in large part, the president.”
This article also appeared in the free CAFE Brief newsletter. You can find more analysis of law and politics from Elie Honig, Preet Bharara, Joyce Vance, and other CAFE contributors at CAFE.com.
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