The Supreme Court just gave presidents a superpower. Here’s its explanation
CNN
Analysis by Zachary B. Wolf, CNN
(CNN) — With its immunity ruling on Monday, the Supreme Court granted former President Donald Trump’s wish of all but guaranteeing that his criminal trial for trying to overturn the 2020 presidential election will not go to trial before the 2024 election in November.
It also granted presidents in general a definitive “absolute immunity” from prosecution for core official acts and said presidents should be presumed immune for a much more expansive list of acts.
In the view of the majority comprised of the six conservative justices on the court, the decision does not place presidents in general, and Trump in particular, above the law. But the three liberals dissented with a warning about how elevating a president will affect American democracy.
The decision has the near-term result of delaying Trump’s trial while a court in Washington, DC, considers which criminal activity that Trump is accused of can be considered “unofficial.” It also has the long-term effect of placing presidents in a different system of justice than other Americans.
Here are key lines from a landmark ruling:
What is this new immunity?
Chief Justice John Roberts explains it in the majority opinion as including absolute immunity for some actions and a presumption of immunity for others.
Why does a president need this immunity?
So that he can act boldly as president and take actions without fear of later prosecution clouding his judgement, according to the court. Here’s Roberts:
What does it say in the Constitution about presidents getting special immunity?
Nothing. But that’s no problem, according to Roberts.
How far does this immunity extend?
A president gets “at least a presumptive immunity” even for acts “within the outer perimeter of his official responsibility,” according to the court. But it’s careful to add that he gets no immunity for “unofficial acts” – and despite the broad reach of the immunity, the court argues presidents are still accountable.
Are any of the things Trump is accused of in special counsel Jack Smith’s indictment outside this blanket of immunity?
During oral arguments in the case back in April, Trump’s attorney, John Sauer, told Justice Amy Coney Barrett that multiple elements of the indictment would indeed be “private,” or unofficial, acts. These include, for instance, getting an outside attorney to organize slates of false electors.
Barrett, in a concurring opinion on Monday, said she would make clear in the decision what was official versus unofficial. But the majority takes no position and wants the trial court to go through the allegations individually. Trump can then appeal whatever the trial court decides. Here’s Roberts:
Does the majority tell the trial court what might be official or not?
The majority gives quite a bit of detail.
Trump has “absolute immunity” for any instructions or pressure he exerted on his acting attorney general, for instance. Plus, the court won’t allow as evidence any interviews with people who worked in the administration (nullifying much of the evidence gathered by the House select committee that investigated the January 6, 2021, events). And it also won’t let a court consider a president’s motives for taking an action.
It’s an open question for the lower court to decide if Trump’s pressure on then-Vice President Mike Pence to disregard the 2020 election results involved “official conduct,” but the Supreme Court put that pressure in the “presumptively immune” category.
The majority thinks Trump’s tweets encouraging people to go to the Capitol and pressure Pence are within the “outer perimeter of his official responsibilities,” but they’re not sure and they expect it will be challenging for the lower court to muddle through these questions.
Why can’t a jury make these decisions?
Juries can’t even consider official acts in terms of a prosecution, according to the Supreme Court.
So the Supreme Court gave Trump everything he wanted?
It certainly embraced Trump’s theory of immunity and pretty much guaranteed the trial will not happen before the election, although the majority says they were restrained since they rejected his request to completely dismiss the case.
So there is a special system of justice for presidents?
The president is more than a person, according to Roberts.
The majority dismisses warnings about a president operating above the laws as “fear mongering on the basis of extreme hypotheticals.” It’s more important to protect the president from political prosecutions, the court says.
Roberts borrows from Trump’s attorneys when he quotes George Washington’s farewell address, in which he warns about factions. The problem with that particular quote, as I found earlier this year, is that Washington also warned about elevating a person above the law.
Does the court mention the politics of today?
Roberts says the court’s considerations are more far-reaching than what’s happening at the moment.
Did it say anything about Smith?
The majority did not weigh in on the brewing argument among conservatives that Smith should not even have a job and that his role as a special counsel is unconstitutional. But Justice Clarence Thomas endorsed the idea in a concurring opinion.
What did Barrett say about alternate electors?
Barrett, a Trump appointee, wrote her own concurrence in which she disagreed with the majority on some key points. She said they could easily have expressed that some of Trump’s conduct was unofficial.
What was in the blistering dissent?
Writing for the three liberals on the court, Justice Sonia Sotomayor blasted the majority as inventing an “atextual, ahistorical, and unjustifiable immunity that puts the President above the law.” She said the court makes it difficult to imagine what might be “unofficial” conduct on the part of the president.
The majority “pays lip service” to the idea that presidents are not above the law “but it then proceeds to place former Presidents beyond the reach of the federal criminal laws for any abuse of official power.”
How far does Sotomayor say presidents can now go?
As far as they want, she says.
Sotomayor ends her missive like this:
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