by Kate Scanlon, OSV News
WASHINGTON (OSV News) — Presidents have immunity from criminal prosecution as it relates to core constitutional acts of their office, presumptive immunity for official acts, but none for unofficial acts, a divided Supreme Court ruled July 1.
The ruling, in effect, is a rejection of former President Donald Trump’s sweeping claim of “absolute” immunity from criminal prosecution. At the same time, the court’s 6-3 decision marks a political win for the presumptive Republican nominee as it makes it unlikely he will face further criminal trials over his alleged attempts to overturn the 2020 election and his mishandling of classified documents, among other misconduct prior to the November election.
“The ruling is a partial victory for Donald Trump and future presidents,” Robert Schmuhl, professor emeritus of American studies at the University of Notre Dame, who critically observes the modern American presidency, told OSV News.
“Clearly, no president can have absolute immunity, but certain actions shouldn’t be subject to litigation. In the former president’s specific case, he’s won more time before he has to go to trial,” Schmuhl said. “In his various court cases, he’s become known as the ‘delayer in chief.’ The Supreme Court’s decision gives added meaning to that nickname.”
The ruling has huge implications for the future of the office of the presidency and the scope of its power, as well as for Trump himself.
Trump was recently found guilty on all 34 felony counts by a Manhattan jury agreeing unanimously that he falsified business records in paying hush money to an adult film actress in the closing days of the 2016 campaign. He has also been indicted in separate criminal cases related to his alleged attempts to overturn the 2020 election while in office and his mishandling of classified documents after he left office.
The high court’s ruling will likely delay prosecution in those cases until after the election. The justices left open the possibility of criminal prosecution, directing lower courts to further consider the charges in light of their ruling.
However, Trump has signaled that if he is elected in November, his attorney general would seek dismissal of the remaining cases. If Trump is not elected in November, he could potentially stand trial in those cases.
Writing for the majority, Chief Justice John Roberts said, “The President is not above the law.”
“But under our system of separated powers, the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts,” Roberts said. “That immunity applies equally to all occupants of the Oval Office.”
“As for a President’s unofficial acts, there is no immunity,” he continued, adding, “Trump asserts a far broader immunity than the limited one we have recognized.”
The ruling means that in considering charges against any president, courts would have to differentiate between official and unofficial acts.
In a scathing dissent, Justice Sonia Sotomayor wrote the majority’s ruling “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,” Sotomayor wrote.
“With fear for our democracy, I dissent,” she added.
Trump wrote in a post on his social media platform Truth Social, “BIG WIN FOR OUR CONSTITUTION AND DEMOCRACY. PROUD TO BE AN AMERICAN!”
In a statement, the Biden-Harris campaign said, “Today’s ruling doesn’t change the facts, so let’s be very clear about what happened on January 6: Donald Trump snapped after he lost the 2020 election and encouraged a mob to overthrow the results of a free and fair election.”
“Trump is already running for president as a convicted felon for the very same reason he sat idly by while the mob violently attacked the Capitol: he thinks he’s above the law and is willing to do anything to gain and hold onto power for himself,” the statement said.
In televised comments from the White House later the same day, Biden argued the ruling “almost certainly means that there are virtually no limits on what a president can do.”
“This is a fundamentally new principle and it’s a dangerous precedent,” Biden said.
Biden, who is dealing with the aftermath of a poor debate performance, did not respond to reporters’ shouted questions about whether he would drop out of the 2024 race. His campaign has denied he will end his candidacy in the face of mounting pressure for him to withdraw and let Democrats nominate another standard-bearer to face Trump in November.
John White, a professor of politics at The Catholic University of America in Washington, told OSV News, “The court has given the presidency unprecedented powers that will have very far reaching consequences.”
He argued that the ruling expands the power of the presidency and places “a severe burden on voters to make the ‘right decision’ when choosing a president.”
With respect to Trump, Derek Muller, a professor at Notre Dame Law School and an expert in election law, affirmed the view that the high court makes it “exceedingly unlikely any trial will happen before Election Day.”
“It gives Donald Trump a victory as to timing, and a partial victory on some substance,” Muller said. “For instance, the decision says that inquiry into his investigation of ‘fraud’ around the 2020 election is part of the president’s core constitutional power and therefore absolutely immune from prosecution, even if others would strenuously disagree.”
But in other areas, the court left open the possibility Trump could be prosecuted, Muller noted, “including his pressure on Vice President Mike Pence, empaneling other electors in other states to send votes into Congress, and giving a speech on January 6 to instigate a crowd.
Muller said special counsel Jack Smith — who is prosecuting Trump for conspiracy to defraud the United States and conspiracy to obstruct an official proceeding in charges related to his alleged conduct after his 2020 election loss — would need to show that the acts were not within Trump’s official responsibilities, but instead unofficial acts that leave him open to prosecution.
“It remains possible, then, that Trump could still face charges,” Muller said.
Justices noted the case is “the first criminal prosecution in our Nation’s history of a former President for actions taken during his Presidency.”
Muller noted the high court is taking a long view with its decision.
“The opinion is written in a way, like cases involving Richard Nixon and Bill Clinton before this one, to provide enduring guidance for future courts facing future challenges with presidencies,” he said. “How often it will need to be invoked in the future remains to be seen.”
