Donald Trump was a big winner at the Supreme Court on Monday, while the Biden administration suffered a crushing defeat. Despite the initial Beltway reactions, however, it does not mean that the former president was given immunity from prosecution. In dealing with the first-ever prosecution of a former president, the Court, by a 6-3 vote, announced the filter through which a criminal prosecution of this type must pass. That filter will slow things down enough to make a trial before November effectively impossible and perhaps untenable, even with an unlimited amount of time.
It’s called a case of first impression when the Court examines an issue for the first time, as they have here in Trump v. United States. John Roberts, Chief Justice of the United States, wrote the Court’s majority opinion. It says each of Trump’s actions charged as a crime must be examined individually. The Court’s ruling sent the case back down to the district court for just such an examination.
New Rule: Presidential Immunity
The ruling explains that when serving presidents act, they are operating in one of three areas. If a sitting president is carrying out his responsibilities under the Constitution, as head of the executive branch of government, he has immunity for such acts, “At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute.” If the president is acting in an official capacity but outside such core powers, then his immunity is “at least presumptive” instead of absolute. Finally, the Court ruled, “There is no immunity for unofficial acts.”
What about Trump? Are his acts core, official, or unofficial? That’s for the parties to fight about at the district court level. For example, Mr. Trump may have immunity from prosecution for any social media post, text, or spoken message he made on Jan. 6, 2021, including his speech on the Ellipse in Washington, DC. Any one of these would have to be examined in light of the new standard set by Chief Justice Roberts and the rest of the conservative bloc, who signed on to the majority opinion, Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Barrett – who concurred in part, and filed a separate opinion.
Many, if not most, of Trump’s acts and words Jack Smith planned to use as evidence of criminal wrongdoing are either core constitutional functions or official acts. Criminalizing any of these in light of the new standard seems like a fool’s errand. Mr. Smith has some tough decisions to make. Donald Trump has time on his side. He’ll have to continue paying his legal team, but that is the only burden now on the former president regarding these charges. The reviews and inevitable appeals will keep the lawyers busy and The Donald away from a trial in the near term.
Clarence’s Concurrence Helping Trump
Justice Thomas filed a separate concurrence, attacking Jack Smith’s bona fides to bring charges in the first place. Thomas’ words might pass under the radar in the deluge of media coverage of the decision, but they may impact the current Mar-a-Lago document prosecution in federal court in Florida. Judge Aileen Cannon has been hearing arguments over how to view Smith’s powers to prosecute. She just got a memo on the matter from a Supreme Court justice in the form of Thomas’ concurrence. He wrote:
“[T]here are serious questions whether the Attorney General has violated that structure by creating an office of the Special Counsel that has not been established by law. Those questions must be answered before this prosecution can proceed. We must respect the Constitution’s separation of powers in all its forms, else we risk rendering its protection of liberty a parchment guarantee.”
Justice Thomas mentioned the issue at oral arguments, and his follow-up may have a near-term impact that few concurrences do.
Justice Sonia Sotomayor wrote the dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson, who filed a separate dissent, too. Justice Sotomayor concludes, “With fear for our democracy, I dissent.” It was not the novel use of criminal laws by the DOJ to prosecute the president’s number one rival for office which instilled fear in the associate justice. Sotomayor writes the majority thinks the president should enjoy immunity, “and so it invents an atextual, ahistorical, and unjustifiable immunity that puts the President above the law.”
Applying America’s Founding Principles
Arguing for the Founders’ vision, Sotomayor went on, “the Framers clearly knew how to provide for immunity from prosecution. They did provide a narrow immunity for legislators in the Speech or Debate Clause. They did not extend the same or similar immunity to Presidents.” She quotes Alexander Hamilton from Federalist No. 69 that former Presidents would be “liable to prosecution and punishment in the ordinary course of law.” Sotomayor says, “The historical evidence that exists on Presidential immunity from criminal prosecution cuts decisively against it.”
Justice Jackson, the Court’s newest member and sole Biden appointee, wrote:
“The majority of my colleagues seems to have put their trust in our Court’s ability to prevent Presidents from becoming Kings through case-by-case application of the indeterminate standards of their new Presidential accountability paradigm. I fear that they are wrong. But, for all our sakes, I hope that they are right.”
Donald Trump posted to social media, “The Supreme Court totally dismantled most of the charges against me. Joe Biden should now call off his ‘dogs.’ Our Country should now be focused on GREATNESS again!” Reaction to the decision from the progressive left was best exemplified by Squad member Alexandria Ocasio-Cortez, who promised to file articles of impeachment against Court members upon Congress’ return. The crucial response, however, will come courtesy of Special Prosecutor Jack Smith – and that is a can of worms as yet unopened.
