DemDaily: Redefining Justice

July 1, 2024

The Supreme Court of the United States (SCOTUS) today ruled that former President Donald Trump may claim presidential immunity from prosecution for official actions taken while in the White House.

Those may include current criminal charges against Trump that he conspired to overturn the results of the 2020 election in the final days of his presidency.

The 6-3 decision along ideological lines makes a distinction between the official conduct of a president and the actions of a private citizen, who does not enjoy immunity.

The unprecedented ruling broadens the scope of presidential privilege, with dangerous implications for our increasingly fragile system of checks and balances that holds the executive branch accountable to its citizens.

In Trump v. United States. Held: "Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts."

Delayed Justice
Trump was indicted August 1, 2023, by a DC District Court grand jury on charges arising from Department of Justice Special Counsel Jack Smith’s investigation into the federal elections interference conspiracy and January 6 attack on the Capitol.

The four criminal counts against Trump -- the first indictment against a US president concerning his actions while in office -- include 1) Conspiracy to defraud the United States under Title 18 of the United States Code; 2) Obstructing an official proceeding; 3) Conspiracy to obstruct an official proceeding under the Sarbanes-Oxley Act of 2002; and 4) Conspiracy against rights under the Enforcement Act of 1870.

He was arraigned August 3 and US District Judge Tanya Chutkan set a trial date of March 4, 2024. Chutkan denied a motion from Trump in early December to dismiss the charges based on his immunity defense, and Trump appealed to the US Court of Appeals for the DC Circuit.

In the interim, on December 11, Smith went to the Supreme Court, urging the justices to fast-track a decision on the immunity question, without waiting months for the US Court of Appeals to weigh in.

"Delay in the resolution of these charges threatens to frustrate the public interest in a speedy and fair verdict," Smith argued. "One that has unique national importance here as it involves federal criminal charges against a former President" which "strike at the heart of our democracy."

On December 22, the high court, which chose not to treat the case as exceptional, declined Smith's request, letting the appeals process continue.

On February 8, the US Court of Appeals for the DC Circuit rejected Trump’s immunity claim, writing, "For the purposes of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution."

Trump appealed to the Supreme Court, which after a two-week delay announced that it would hear the case. Historically SCOTUS has expedited cases of such constitutional significance. In 2000, in Bush v. Gore, the court issued its decision handing the presidency to George W. Bush the day after the justices heard arguments.

Trump's immunity appeal was not heard until the final week of oral arguments in late April -- and today's ruling was issued on the last day of the court's term. The decision by the court's conservative majority to slow-walk the case all but guaranteed that Trump's criminal case would not be heard until after the 2024 presidential election.

The Dissent
In a scathing dissent, Justice Sonya Sotomayor, joined by fellow liberals Justices Kentanji Brown Jackson and Elena Kagan, said the decision "makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.”

The decision, she said, effectively allows presidents to commit clear crimes without punishment, an expansion of presidential powers that puts democracy at risk.

Jackson went further, saying the ruling changes the balance of power among the three branches of government with no guardrails to deter presidents from abusing their power. Pointing to the “practical consequences” of the majority decision she wrote, “While the President may have the authority to decide to remove the Attorney General, for example, the question here is whether the President has the option to remove the Attorney General by, say, poisoning him to death.”

“The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law...With fear for our democracy, I dissent.” - Justice Sonya Sotomayor

Next Steps
SCOTUS sent the case back to Trump’s trial judge, US District Judge Tanya Chutkan, to determine which acts alleged in the indictment are "official," which are "unofficial," and which acts may be prosecutable -- as argued by Smith's prosecutors and Trump’s legal team. Either side could also appeal the results.

Should the trial be held after the November election, and Trump reclaims the White House, he could order the Justice Department to drop its case against him. He cannot be prosecuted while in office.

The federal case does not affect sentencing for Trump in his New York criminal conviction on 34 counts of falsifying business records in a hush-money scheme. That court appearance is July 11, four days before he is expected to accept the Republican nomination for president in Milwaukee, Wisconsin.

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Kimberly Scott

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Sources: NBC, The Hill, New York Times, CNN, ScotusBlog, Washington Post, The Guardian

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