The breadth of Monday’s Supreme Court decision largely protects former President Trump from criminal prosecution, while also raising questions about the extent to which future presidents can take actions that would not be controlled by the courts.
The ruling doesn’t just limit how Trump can be prosecuted for his actions through January 6, 2021. It further undermines special counsel Jack Smith’s case by restricting which presidential actions can even be considered evidence in a prosecution. It’s a factor that will certainly be raised in other ongoing Trump cases.
It also raises questions about what future illegal conduct or abuse of power might be beyond the reach of prosecutors or the courts, including dire hypotheticals about whether Trump could order the murder of his political opponents.
“The court gives former President Trump all the immunity he asked for and more,” wrote Justice Sonia Sotomayor, in a blistering dissent that said the president can now use his office for “evil purposes.”
In its Monday ruling, the high court ruled that presidents have immunity for major official actions they take while in office; while for all other official acts presidents are “at least presumptively” immune.
Neil Eggleston, a former White House adviser to President Obama, said the decision appears to condone an extreme example cited during discussions: whether the president could order Seal Team 6 to eliminate a rival.
“That was the hypothesis that people thought would make the court think it couldn’t go that far,” he said.
“I think so… It seems to me that giving orders to the military is like the central function of the commander in chief of power. So I’m not sure how it’s not exempt.”
The ruling ultimately sends Trump’s case back to the district court to determine which of his actions leading up to January 6 would be considered an official act.
But some of his conduct specifically condoned by the ruling makes clear that the court views almost all actions rooted in a president’s role as protected from prosecution.
Trump’s pressure campaign on the Justice Department – a contact that threatened to subvert his leadership to install an attorney general who wanted to launch an investigation into Trump’s baseless allegations of voter fraud – was deemed far-reaching by the court and “absolutely immune.” .
Chief Justice John Roberts wrote that “discussions” like these were permissible since presidents “have ‘unfettered power to remove the most important of their subordinates’” and “exclusive authority over the investigative and prosecution of the Department of Justice and its employees.”
For the court’s liberals, this grants immunity to presidents when they abuse their power – even in the most extreme hypotheses raised during the discussions.
“When he uses his official powers in any way, according to the majority’s reasoning, he will now be exempt from criminal prosecution. Order Navy Seal Team 6 to assassinate a political rival? Immune. Organize a military coup to maintain power? Immune. Do you accept bribes in exchange for forgiveness? Immune. Immune, immune, immune,” Sotomayor wrote.
In a concurring dissent, Justice Ketanji Brown Jackson also focused on a president’s ability to commit murder.
“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 of removing the Attorney General, say, by poisoning him to death,” she wrote.
“Put another way, the question here is not whether the President has exclusive power to remove from office, but whether a generally applicable criminal law prohibiting homicide can restrict how the President exercises that authority.”
Eggleston said the ruling also appears to condone taking bribes for pardons or ambassadors.
“The fact that the main presidential functions are absolutely immune really means that there are many things that the president does that he simply cannot be accused of, regardless of the motive, the intent and the consequences,” he said.
“I simply cannot imagine that the authors really thought this conduct by a president would be appropriate.”
Other elements of the ruling further complicate Smith’s path to bringing charges against Trump.
The opinion prohibits the use of evidence related to an official act anywhere else in any possible criminal prosecution.
In Trump’s case, this means that his pressure on the Department of Justice or anything else that the courts determine in an official act cannot be presented to the jury, not even to strengthen his case on the remaining elements.
Justice Amy Coney Barrett, who joined the majority, suggested in a concurring opinion that the limitations on evidence went too far.
“The Constitution does not require juries to be blind to the circumstances surrounding conduct for which presidents can be held accountable,” she wrote, citing bribery as an example.
“Excluding from the trial any mention of the official act related to bribery would prejudice the prosecution.”
And in another section of the opinion, Roberts prevented courts from considering a president’s motive when trying to determine whether conduct was official or unofficial.
This is yet another complicating factor for Smith, who has filed charges related to Jan. 6 that require a showing of corrupt intent.
“They are making things very difficult for the prosecution. And I don’t have a good answer for why they’re doing this, but it’s going to be difficult for prosecutors to prove corrupt intent if they can’t investigate the motive,” said Barbara McQuade, a former U.S. attorney.
McQuade said looking at motive could have been a good way to uncover conduct that should be immune, separating those done in good faith from those done for personal gain, nodding to Trump’s conversations with then-Vice President Pence.
“Not looking at the reason, I think, can make it very difficult to engage in the design that they want to draw,” she said.
MSNBC legal analyst Lisa Rubin gave another example.
“A president invades the home of a political rival because of their fight, rather than because of any legitimate suspicion of criminal activity? Meat is legally irrelevant,” she wrote on X.
Trump made it clear that he views the decision as a victory — calling it a “high-level BLOW” for Smith — and as a path to unraveling his other cases.
The former president’s lawyers have already relied on the ruling to challenge Trump’s guilty verdict in his Manhattan silence case, writing a letter to Judge Juan Merchan on Monday night asking him to overturn the verdict.
It’s unclear whether Monday’s ruling will provide much ground to overturn the case. Some of the heavy-handed conduct in the indictment happened before Trump was elected, and Trump also waived his immunity defense in court. While the ruling made clear that private acts do not have immunity, Trump’s efforts could prompt further scrutiny from the court on whether his efforts to hide an alleged affair fit the bill.
The issue of immunity was, however, raised by Trump in both his Georgia election interference case and his Mar-a-Lago documents case.
Trump previously argued that he had designated records in his home as personal records under the Presidential Records Act — an unlikely argument, but one that could gain new traction with Judge Aileen Cannon following the immunity ruling.
This story originally appeared on thehill.com read the full story
