As the Supreme Court heard oral arguments earlier this year over whether Donald Trump could be charged with crimes allegedly committed while in office, Justice Neil Gorsuch mused that he and his colleagues on the bench were being asked to draft “a rule for the ages”.
In a 43-page opinion on Monday, the US’s highest court did just that, with a broad decision that will upend not just the federal prosecutions against the presumptive Republican nominee in November’s presidential election, but also shield future presidents from facing criminal consequences for some of their actions in the Oval Office.
Here are some of the main takeaways from the landmark ruling.
US presidents are shielded from certain criminal prosecutions even after leaving office
When Trump’s lawyers first posited that the former president should be immune from prosecution over his alleged attempts to reverse the results of the 2020 election, including inciting an angry mob to ransack the US Capitol, their argument was met with scorn by many legal scholars.
A 1982 opinion related to Richard Nixon’s decision to fire an Air Force employee while in the White House, Nixon vs Fitzgerald, had established that a US president cannot be sued for civil damages, since he or she must be able to do their job without fear of reprisals. But before the Trump case no court, let alone the Supreme Court, had ruled on the question of whether a president could be immune from criminal proceedings.
On Monday, the high court established that even after leaving office, a former commander-in-chief is protected from criminal prosecutions too, at least when the charges in question relate to “conduct within [the president’s] exclusive sphere of constitutional authority”.
Chief Justice John Roberts, who wrote the opinion on behalf of the 6-3 majority, quoted Alexander Hamilton, one of the founding fathers, who he said spoke for the framers of the US Constitution when he demanded a “vigorous” and “energetic” executive — in other words, a president who would not be fearful of future prosecutions for carrying out his core duties while in office.
At least some of the January 6 allegations against Trump will probably be thrown out
The question of precisely which alleged crimes committed by Trump in the final of weeks of his presidency — as he scrambled to stop the results of the 2020 election from being certified, culminating in an attack on the US Capitol by a mob of his supporters on January 6 2021 — constitute “official acts” was largely punted by the justices back to Judge Tanya Chutkan, who is overseeing the election interference case in a Washington DC federal court.
But the majority opinion did cast immediate doubt on one of the contentions against Trump, in which prosecutors claim he attempted to get the acting attorney-general to push the case that there had been election fraud, and threatened to replace him if he resisted.
Trump is “absolutely immune from prosecution for the alleged conduct involving his discussions with justice department officials”, the opinion concluded. A president’s “motives” could not be interrogated when it came to an official act, the majority added, as this would be “intrusive”.
The majority said much of the rest of the conduct in question — which includes an alleged attempt by Trump to get attorneys including Rudy Giuliani and Sidney Powell to pressure lawmakers on his behalf — “cannot be neatly categorised as falling within a particular presidential function” and needed to be analysed by the lower courts.
Liberal justices warn of ‘unjustifiable’ decision that ‘puts the president above the law’
Justice Sonia Sotomayor, joined by the two other liberal justices on the bench, did not mince her words in raising the alarm about the consequences of Monday’s decision. The majority’s “project”, the Obama appointee wrote, “will have disastrous consequences for the presidency and for our democracy”. She laid out various scenarios in which the holder of the office would be able to, literally, get away with murder.
The president of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organises a military coup to hold onto power? Immune. Takes a bribe in ex-change for a pardon? Immune. Immune, immune, immune.
Suzanna Sherry, a constitutional law expert at Vanderbilt University, said while she believed Sotomayor’s doom-laden response contained some “hyperbole”, it was “understandable”.
“All these [conservative] justices claim to be following the text of the constitution . . . and that is not what this decision is based on,” she said.
The majority, meanwhile, arrived at its decision based on the effect criminal prosecutions could have on a president’s duties, and not because the framers had explicitly given the office’s holder immunity.
Trump’s classified documents case could also be in jeopardy
While Monday’s opinion related to the January 6 case, it could have broad repercussions for the other federal indictment against Trump, over the alleged retention of classified documents at his Mar-a-Lago mansion.
Justice Clarence Thomas, whose wife Virginia has been embroiled in controversy over her alleged supporting role in Trump’s efforts to overturn the elections, used his concurring opinion to cast doubt on the cases brought by Jack Smith, the special counsel appointed by President Joe Biden’s Department of Justice to oversee the federal cases against Trump.
“A private citizen cannot criminally prosecute anyone, let alone a former president,” he wrote, challenging the constitutionality of Smith’s role.
While his concurrence was not joined by other conservative justices, Thomas’ comments will be music to the ears of Trump’s lawyers, who are already challenging Smith’s appointment in the lower courts.
One conservative justice felt the high court had gone a bit too far in protecting presidents
While all the conservative justices agreed that US presidents should be immune from certain official acts, Trump appointee Amy Coney Barrett balked at one clause in the majority’s decision.
She wrote separately to contest the notion that the constitution would prevent federal prosecutors from even introducing protected “official” acts as evidence in a criminal prosecution of a president for separate private deeds. Barrett argued that by this logic, it would, for example, be impossible for the government to bring a bribery case that related to a president accepting money in order to commit an official act.
Instead, she said, a “president facing prosecution may challenge the constitutionality of a criminal statute as applied to official acts alleged in the indictment. If that challenge fails, however, he must stand trial.”
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