The US supreme court has ruled that former presidents are entitled to some degree of immunity from criminal prosecution, a major victory for Donald Trump that guts the 2020 election subversion case against him and any prospect of a trial before November.
The court’s conservative majority – which Trump helped create – found 6-3 that presidents were protected from prosecution for official actions that extended to the “outer perimeter” of his office, but could face charges for unofficial conduct.
Conservative bloc
Alito – Majority
Barrett – Majority
Gorsuch – Majority
Kavanaugh – Majority
Roberts – Majority
Thomas – Majority
Liberal bloc
Jackson – Minority
Kagan – Minority
Sotomayor – Minority
Trump is accused of overseeing a sprawling effort to subvert the 2020 election, including two counts of conspiring to obstruct the certification of the election results, conspiring to defraud the government, and conspiring to disenfranchise voters.
Among the accusations: Trump spread false claims of election fraud, plotted to recruit fake slates of electors, pressured US justice department officials to open sham investigations into election fraud, and pressured his vice-president, Mike Pence, to obstruct Congress’s certification of Joe Biden’s win.
To determine whether Trump’s alleged attempts to overturn the 2020 election results were official acts, the supreme court remanded the case back to the presiding US district judge Tanya Chutkan, who will have to review the indictment line by line.
The review will be done under a three-part test: whether particular conduct is a core presidential function that carries absolute immunity, an official act within the outer perimeter of the presidency that carries presumptive immunity, or an unofficial act that carries no immunity.
To defeat presumptive immunity, the opinion said, Chutkan would have to decide if charging Trump would “pose any dangers of intrusion on the authority and functions of the Executive Branch”.
The court left the analysis up to Chutkan. But Chief Justice John Roberts, writing for the majority, preemptively determined that Trump’s interactions with justice department officials were official acts because they are part of the executive branch and answer to the president.
Roberts also determined that Trump’s interactions with Pence were presumptively immune, since the president discussing responsibilities with the vice-president was an instance of official conduct. The burden was on prosecutors to prove otherwise, Roberts wrote.
And on the matter of Trump’s remarks on January 6, Roberts wrote that they too were probably protected, since presidential addresses were an integral function of the office. But the opinion also allowed that in Trump’s case, it may be appropriate to categorize his speech as that of a candidate for office.
The most damaging part of the ruling for prosecutors will be the prohibition of using any conduct determined to be official acts as evidence at trial. Prosecutors had hoped they could introduce official acts – even if they weren’t charged – as evidence to show Trump’s intent.
The ruling was one of the last handed down by the supreme court this term. In waiting until the end, the conservative majority played into Trump’s benefit and legal strategy of trying to delay any trial as much as possible.
The effect of the ruling to block a prompt trial, after the court moved quickly to keep Trump on the ballot in March, has already ignited fierce criticism by liberals and others who believe Trump’s case should be resolved before voters cast their ballots in the forthcoming election.
Trump’s legal strategy for all of his federal criminal cases – he also faces charges in Florida for illegally retaining classified documents – has been to delay them until after the election, in the hope that he will be re-elected and can appoint as attorney general a loyalist who would drop the charges.
As the calendar now stands, a trial in Trump’s election subversion case cannot start until 20 September at the earliest, since Trump’s lawyers have 88 days left on the clock to prepare a defense after the case was automatically frozen when they launched the immunity appeal.
From his Mar-a-Lago club in Florida, Trump celebrated the ruling with an all-caps statement on his Truth Social platform: “BIG WIN FOR OUR CONSTITUTION AND DEMOCRACY. PROUD TO BE AN AMERICAN!”
Last October, Trump filed to dismiss the indictment on grounds that he enjoyed absolute immunity from prosecution. After Chutkan denied the motion, Trump moved to challenge her ruling on 8 December at the US court of appeals for the DC circuit.
The appeal carried an automatic stay that froze the trial proceedings, because if Trump won his immunity claim, it would foreclose any prosecution.
Trump’s election subversion case remained frozen as the supreme court considered his immunity claim, after the DC circuit denied the appeal, with the conservative justices showing no urgency to resolve the case at oral argument partly because they appeared to see the case as politically motivated.
As the justices worked through potential tests to delineate between official and private conduct, Justice Amy Coney Barrett suggested the special counsel could always get around the time-consuming process by editing his own indictment and bringing the case on unambiguously private acts.
