WASHINGTON — Former President Donald Trump has absolute immunity from prosecution for official acts taken while in office, the Supreme Court's conservative majority ruled in a 6-3 decision Monday.
The court's decision, from which all three liberal judges dissented, sharply limits the range of conduct for which a former president may be prosecuted and likely dooms some aspects of Special Counsel Jack Smith's election fraud indictment against Trump. Writing for the majority, Chief Justice John Roberts said former presidents are "absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority."
"As for a President's unofficial acts," Roberts wrote, "there is no immunity."
Trump was indicted by a federal grand jury last fall on four felony counts for his efforts to overturn the results of the 2020 election. In his opinion Monday, Roberts said at least some of that indictment was explicitly precluded by the court's decision. He pointed to allegations that Trump had attempted to "leverage the Justice Department's power and authority" by, among other things, asking the acting attorney general to announce unwarranted investigations of the 2020 election to convince contested states to send fraudulent slates of electors to Congress. That, Roberts said, fell squarely within the president's official duties.
"Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials," Roberts wrote.
Trump likely enjoys presumptive immunity for other aspects of the indictment as well, Roberts said, including his efforts to persuade then-Vice President Mike Pence to use his role presiding over the joint session of Congress on Jan. 6 to overturn the results of the election. Roberts said Trump's public communications on Jan. 6, including a speech he gave at a "Stop the Steal" rally at the Ellipse, also likely fell within the realm of official acts.
The case will now go back to U.S. District Judge Tanya S. Chutkan for further analysis and argument about which of Trump's alleged actions qualify as official and, therefore, immune from prosecution, and which do not. The high court offered Chutkan little guidance on how to make that determination, however, save to say that lower courts should not inquire into the president's motives behind an act nor decide an act is unofficial "merely because it allegedly violates a generally applicable law." Where an act falls into the category the court said enjoys presumptive immunity, Roberts said prosecutors must show that charging a former president for it would pose no "dangers of intrusion on the authority and functions of the Executive Branch."
Monday's decision drew a scathing rebuke from Justice Sonia Sotomayor, who said it made a "mockery" of the principle that no man is above the law.
"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," Sotomayor wrote."
The court's decision marks a unexpectedly significant win for Trump, who argued presidents must be absolutely immune from criminal prosecution after they leave office to be able to perform their duties. During oral arguments before the high court in April, former Missouri Solicitor General Dean John Sauer, arguing on Trump’s behalf, said that prohibition against prosecution should extend even to political assassinations and military coups as long as they were “official acts” by the president.
Sauer faced grilling from justices on the conservative and liberal wings of the court about his claims that the founders intended the president to only be subject to criminal liability if he were first impeached by the House and convicted by the Senate. Justice Ketanji Brown Jackson asked why, if that was the historic understanding, President Gerald Ford offered President Richard Nixon a pardon – which he accepted. Justice Sonia Sotomayor was more blunt, saying the framers of the Constitution were well aware of the dangers of an unchecked executive.
“Wasn’t the whole point that the president was not a monarch and the president was not supposed to be above the law?” Sotomayor asked.
But justices on both wings of the court were also clearly aware of the effect their historic decision could have on future presidents. Justices Brett Kavanaugh, who worked in the Office of White House Counsel during President George W. Bush’s administration, and Samuel Alito, who was a deputy assistant attorney general in the Office of Legal Counsel, both repeatedly pressed the government on whether future ex-presidents would need to be concerned about politically motivated prosecutions if the court signed on to their view.
Michael R. Dreeben, a former deputy solicitor general who joined Special Counsel Jack Smith’s team late last year, said he believed there were sufficient guardrails in place to prevent that. But neither Kavanaugh nor Alito appeared convinced.
“It’s not going to stop,” Kavanaugh, who worked as part of Independent Counsel Ken Starr’s investigation into President Bill Clinton, said. “It’s going to cycle back and be used against the current president and the next president and the next president after that.”
Alito, addressing a second comment by Dreeben that a president could avoid criminal liability by getting advice on the legality of his actions from the attorney general, asked if they wouldn’t be setting up future presidents to be incentivized to nominate attorney generals who would essentially act as yes men for them. He, like Kavanaugh, also worried about endorsing a trend of post-presidency prosecutions.
“Will that not lead us into a cycle that destabilizes us as a democracy?” Alito asked.
Trump had been scheduled to begin trial May 20 in his other federal case stemming from more than 300 classified documents found in his Mar-a-Lago estate, but that trial was put on hold indefinitely by U.S. District Judge Aileen Cannon. Cannon, who was nominated to the federal bench by Trump in 2020, told federal prosecutors there were too many outstanding issues remaining to set a new trial date. She instead set a new pretrial motions schedule to continue through at least July 22.
In May, a jury in New York City convicted Trump of 34 felony charges for falsifying business records to cover up a hush money payment to porn actress Stormy Daniels — all part of a plan, prosecutors argued at trial, to influence the 2016 presidential election by preventing potentially damaging information about Trump's alleged affair from coming out. He was scheduled to be sentenced in that case on July 11, just days before the Republican National Convention.
Trump also faces additional state charges in Georgia, where he and more than a dozen other people were indicted last August on racketeering and other charges for allegedly scheming to overturn the results of the 2020 presidential election in that state. A number of former Trump allies, including lawyers Jenna Ellis, Sidney Powell and Kenneth Chesebro, have already read plea deals with Georgia prosecutors in that case in exchange for providing information to assist the ongoing investigation.