How far does the Supreme Court’s immunity decision really go?

Mike Bebernes

The Supreme Court ruled on Monday that former presidents have broad immunity from prosecution for acts they committed while in office, granting Donald Trump a partial victory in his effort to derail various criminal trials.

Until recently, no ex-president had ever faced criminal charges. The state and federal cases against Trump sparked debates about the depth and breadth of the presidency’s legal protections.

In a 6-3 ruling split along partisan lines, the court established a new standard that grants presidents broad, but not total, immunity for their actions while in office. The decision, written by Chief Justice John Roberts, hinges on the distinction between official and unofficial acts of the presidency. Official acts have immunity. Unofficial acts do not.

So what qualifies as an official act? Those fall into two categories. The first is any powers that are explicitly given to the president by the Constitution. Anything else that falls within the typical scope of the presidency carries a “presumption of immunity” that would need to be challenged before a former president could face prosecution.

The exact boundary between official and unofficial acts were not defined by the ruling, including in Trump’s Jan. 6 indictment case that prompted the decision. The judge in that case will now be tasked with deciding whether Trump’s actions were official or unofficial.

Trump has connected the ruling to the other cases against him as well; his sentencing in New York’s falsifying of business records trial has already been delayed while the judge considers its effect.

Any decision the court made connected to Trump’s criminal trials was bound to be controversial, but the murkiness of the standards in this ruling has created enormous room for debate and speculation.

The loudest reactions came from Trump’s critics on the left, who widely agree with the view liberal Justice Sonia Sotomayor expressed in her dissent that the decision “makes a mockery” of the foundational principle of U.S. democracy “that no man is above the law.” Under their interpretation of the ruling, presidents now have wide power to abuse the extraordinary powers of their office.

Roberts argued in his opinion that this view was little more than “fear mongering” based on “extreme hypotheticals” that overlooks the importance of having presidents who can act without fear of trials, civil damages suits and criminal prosecution. Many conservative-leaning voices agree, making the case that there is still plenty of room to hold presidents accountable if they stray egregiously from the duties of his office.

It’s too early to know whether Monday’s ruling means the end of any of the four indictments against Trump, but it’s likely to cause significant delays as prosecutors and judges assess whether their cases fall within the scope of the court’s new immunity standards.

The Supreme Court just declared that presidents are above the law

“All future presidents will enter office with the knowledge that they are protected from prosecution for even the most appalling and dangerous abuses of power so long as they insist they were seeking to carry out their duties, as they understood them. … The Framers of the Constitution, wary of reestablishing the monarchy they overthrew, carefully limited the chief executive’s powers. And six justices just crowned him king.” — Mark Joseph Stern, Slate

Presidents need to be able to lead the country without the threat of future prosecution hanging over them

“Any prosecution of a president based on his official acts harms the presidency’s effectiveness. … If the justices had decided otherwise, our nation would have descended into a destructive cycle of perpetual lawfare, weakening all presidents—including Mr. Biden—and further politicizing the justice system.” — David B. Rivkin Jr. and Elizabeth Price Foley, Wall Street Journal

We won’t know what this ruling really means until it’s tested in future cases

“Anyone who expected the US Supreme Court to give clear guidance on the extent to which former President Donald Trump can be tried (and tried and tried) for the crimes of which he has been accused must surely be disappointed. … But clarity shouldn’t have been expected, not least because there are, essentially, no precedents.” — Stephen L. Carter, Bloomberg

The carveout for unofficial acts is meaningless in reality

“Under this new standard, a president can go on a four-to-eight year crime spree, steal all the money, and murder all the people they can get their hands on, all under guise of presumptive ‘official’ behavior, and then retire from public life, never to be held accountable for their crimes while in office. That, according to the court, is what is required by the Constitution.” — Elie Mystal, The Nation

The decision wisely prevents the Justice Department from being used as a weapon for political purposes

“The Supreme Court put a brake on the Democratic Party’s campaign to weaponize the justice system for political reasons on Monday, and President Joe Biden may end up being the biggest beneficiary because now President Trump can’t prosecute him for his refusal to enforce immigration laws, which has resulted in the rapes and deaths of over a dozen women.” — Conn Carroll, Washington Examiner

Trump is now free to essentially become a dictator in his second term

“Monday’s decision … ensures that, should Trump return to power, he will do so with hardly any legal checks. Under the Republican justices’ decision in Trump, a future president can almost certainly order the assassination of his rivals. He can wield the authority of the presidency to commit countless crimes. And he can order a subordinate to do virtually anything. And nothing can be done to him.” — Ian Millhiser, Vox

The ruling is worrying, but not to the extreme level some liberals are panicking about

“Justice Sonia Sotomayor argues that the Court’s ruling would permit a president to order an assassination without consequences, but I respectfully dissent from that dissent. I don’t see any way a court concludes that such a plot would be an ‘official act’ within the scope of the job” — Elie Honig, New York

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