President Nixon’s former White House counsel says if Nixon had enjoyed the broad presidential immunity set out this week by the US Supreme Court he could have got away with Watergate.
So what? Trump could now get away with worse. Monday’s ruling on an immunity claim brought by his lawyers gives him less than complete protection from criminal prosecution – but not much less.
- It uses history and posterity (see below) to delay any attempt to prosecute Trump for his efforts to overturn the last US presidential election until after the next one.
- It vastly complicates any such prosecution should it ever come to trial.
- It defines immunity for the next president in such sweeping terms that a furious dissenting opinion says he will be “a king above the law”.
Cleared for take-off. This was a BIG WIN for Trump, as he noted in full caps, and a personal one delivered by the 6-3 conservative court majority which he helped install. His runway to re-election is now virtually clear of the legal debris that was piling up there:
- Special prosecutor Jack Smith’s federal criminal indictment for the January 6th insurrection could be fatally undermined by new limits on what he can use as evidence.
- A separate Supreme Court ruling last week on what counts as obstructing official proceedings undermines all January 6th prosecutions, not just Trump’s.
- Even his conviction on all 34 counts in a New York state hush money trial last month is now in abeyance as the immunity ruling sinks in.
History. Chief Justice John Roberts’ majority ruling invoked the US Constitution’s Article II requirement for an “energetic, independent executive”. It also cited a 1982 Supreme Court case which gave presidents substantial immunity on the basis, essentially, that they should not be distracted from their day job.
Posterity. Glossing over Trump, the new ruling says the court “cannot afford to fixate on present exigencies”. As another conservative justice says, it has to issue opinions “for the ages”.
Immunity. Thus, as of this week presidents (and ex-presidents) have
- absolute immunity from criminal prosecution for acts carried out in furtherance of “core” presidential duties such as commanding US forces;
- “presumptive” immunity for “official” or public acts; and
- no immunity for “unofficial” or private acts.
Two critical questions for lower courts from now on are therefore what counts as official, and when “presumptive” means “actual”.
Roberts offers four answers:
- Accused of badgering the US Department of Justice to pursue claims of voter fraud in 2020, Trump has absolute immunity because these were official communications – even though the claims were baseless.
- Accused of urging Vice President Mike Pence to refuse to certify the 2020 result, he is presumptively immune (the burden is on the government to rebut his immunity) because “whenever the President and Vice President discuss their official responsibilities, they engage in official conduct” – even when the goal is to overturn an election.
- Accused of phoning and messaging state officials with plans for a fraudulent “fake elector” scheme, he may be immune because he claimed to be ensuring “the integrity and proper administration” of the election – even though real electors had already been chosen.
- Accused of encouraging the insurrection with false claims on Twitter and in a speech on January 6th, he may be immune because these activities fall within “the outer perimeter” of his official responsibilities – even though the claims have already been rejected by dozens of courts across the US.
Impunity. The supposedly collegial Supreme Court can seldom have looked more divided than when the dissenting Justice Sonia Sotomayor rose to attack a majority ruling that she said “makes a mockery of the principle… that no man is above the law” and leaves presidential immunity “lying around like a loaded gun”.
The ruling was “atextual, ahistorical and unjustifiable,” Sotomayor said.
Don’t take her word for it. She also cited Trump’s own impeachment counsel, who in 2021 invited his critics to wait ‘till he was out of office “and arrest him”.
Don’t panic. Roberts’ ruling does require a fact-finding hearing in a lower DC court that could still air the January 6th charges against him before the election.
What’s more… it may be that if Trump shot someone on 5th Avenue he wouldn’t lose voters, as he once boasted. But he wouldn’t be immune. It would be “unofficial”.
