In a shocking and lawless decision, the Supreme Court granted the President broad protection from criminal prosecution for “official duties” performed while in office. This decision by the Court's conservative supermajority drew new constitutional rules out of thin air and created horrific and unjustified barriers to criminal prosecution of a President who acts illegally. Mr. Trump is now poised to once again try to dismiss the charges against him and evade responsibility for serious crimes against democracy. The Supreme Court has shattered the rule of law while looking the other way.
The 6-3 Supreme Court decision, written by Chief Justice John Roberts and joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, seeks to set rules governing prosecution of all future office-holders in the Oval Office. The Supreme Court has ruled that the president “cannot be prosecuted for the exercise of his or her power.” [their] Core constitutional powers; and [are] At a minimum, they are entitled to a presumption of immunity from prosecution. [their] The president enjoys an ‘official act,’” the court noted.[] No Disclaimer [their] “Presidential acts are informal, and not all presidential acts are official.” But that latter assertion rings hollow in the context of the decisions that surround it. The Supreme Court has created an elaborate system of vague rules that not only add complexity to the case against Trump, but also weaken checks on presidential misconduct, both as an impediment to prosecutions and as an encouragement to further insurrection.
Trump vs. the United States The case involves Trump being charged in Washington, D.C., with federal crimes stemming from an alleged conspiracy to overturn the results of the 2020 election, which was the impetus for the attack on the Capitol on January 6. Special Counsel Jack Smith charged that as part of the conspiracy, Trump and his associates spread false claims of election fraud, pressured state officials to ignore the results of the popular vote, organized a fake slate of Trump electors, pressured the Department of Justice and tried to lobby Vice President Mike Pence to replace real electors with fake ones.
Trump sought to have the case dismissed, or at least postponed until after the 2024 election, arguing that a president has absolute immunity from criminal prosecution for official conduct. After his arguments were rejected by the trial court and appeals court, he took the case to the Supreme Court, which rewarded his blatant delaying tactics and exhaustive legal efforts with a decision that was shocking in both substance and impact.
For the first time, the Supreme Court has held that the president is not subject to criminal law, a fundamental repudiation of a foundational part of America's legal and political tradition. The idea that a president can be prosecuted for illegal acts was common knowledge to the Framers of the Constitution, played a crucial role in ratifying the Constitution in the late 18th century, and was the background principle by which every president has operated for centuries since. (Fifteen distinguished historians, represented by the Brennan Center and our co-counsel at the law firm of Friedman Kaplan, made precisely this argument in an amicus brief this spring.) The Court has now overturned all of that and created a new constitutional rule from scratch.
The process the Supreme Court created for it is tilted in Trump's favor. Whenever the case returns to Judge Tanya Chutkan's court, Trump will be presumed immune by default, and the burden will be on prosecutors to prove otherwise. The Supreme Court's definition of “official duties” is extremely broad, stating: [Trump’s] “Official conduct” (the court did not say exactly where that line ends). Prosecutors said prosecuting Trump for these official acts “would be a sham.” No danger The alleged “usurpations” of presidential powers and functions cannot be argued by prosecutors to be “unofficial” (emphasis added). Prosecutors cannot be argued to call official acts “unofficial” because of the president's motivation. And Trump could seek a second appeal if the trial court denies immunity. If the government clears these hurdles, it will no longer be able to use Trump's “testimony or private records” as evidence. [Trump] To prove his guilt, it asked him to report on his official duties to “him or his advisers.”
The Supreme Court justifies all of these new complexities as necessary to protect a fictional future president from a fictional future prosecution. Importantly, the Court does not justify this as a response to the conduct of a former president who has actually been accused and credibly charged in the case currently before it. Just as the Court’s conservative supermajority consistently tried to shift the conversation away from Trump’s accusations during oral argument, they have not even attempted to consider the larger implications of applying the new rule to the case at hand, or the consequences if that rule ultimately exonerates Trump. Instead, the Court withdraws from the case with the succinct but myopic assertion that it “cannot afford to adhere solely or primarily to the present emergency” because “temporary consequences” threaten “the future of the Republic.”
The Supreme Court will not consider the impact of its opinion because it cannot, at least not without exposing the fundamental bankruptcy of the entire edifice it has built. The majority’s decision cannot become the rule of a functioning democracy. Trump is accused of trying to overturn the election that ousted him. A rule that would grant the president immunity for that crime would eliminate the main check on presidential abuses of power in a democratic system: the vote. And it would encourage other losing candidates to try the same in future elections. In this sense, the Supreme Court’s opinion is truly lawless. It does not simply create a constitutional rule that runs counter to the nation’s founding promises and enduring values. It threatens to free the president from the constraints of law and democracy. And it paves the way for future presidents to try to implement that most anti-democratic of all propositions: “might makes right.”
“By downplaying the actual criminal conduct at hand while attempting to resolve future cases of presidential criminal conduct, the Supreme Court has jeopardized accountability for Trump's wrongdoings. It has gravely violated our laws and endangered our democracy.”
Trump vs. the United States That is not a serious opinion for a serious democracy. It is a monumental dereliction of duty.
