In a 6-3 split decision, the US Supreme Court has held that former President Donald Trump cannot be prosecuted for official actions taken as president, but lack such immunity for unofficial acts.
The justices, in a landmark ruling, recognised for the first time that former US presidents were shielded from prosecution for actions they took within their constitutional authority, as opposed to a private capacity.
The justices threw out a lower court’s decision rejecting Trump’s claim of immunity from criminal charges involving his efforts to undo his 2020 election loss to Joe Biden.
The six conservative justices were in the majority. The Supreme Court’s three liberals dissented.
The decision came in Trump’s appeal of a lower court ruling rejecting his immunity claim. The court decided the blockbuster case on the last day of its term.
The ruling written by Chief Justice John Roberts stated, “We conclude that under our constitutional structure of separated powers, the nature of presidential power requires that former presidents have some immunity from criminal prosecution for official acts during his tenure in office.”
It added, “At least with respect to the president’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity.”
Trump is the Republican candidate challenging Democratic President Joe Biden in the November 5 US election in a rematch from four years ago.
The court’s slow handling of the blockbuster case already had helped Trump by making it unlikely that any trial on these charges brought by Special Counsel Jack Smith could be completed before the election.
Trump had argued that he was immune from prosecution because he was serving as president when he took the actions that led to the charges. Smith had opposed presidential immunity from prosecution based on the principle that no one was above the law.
During April 25 arguments in the case, Trump’s legal team urged the justices to fully shield former presidents from criminal charges – “absolute immunity” – for official acts taken in office. Without immunity, Trump’s lawyer said, sitting presidents would face “blackmail and extortion” by political rivals due to the threat of future prosecution. The court’s 6-3 conservative majority included three justices Trump appointed.
Smith’s election subversion charges embodied one of the four criminal cases Trump had faced.
Trump, 78, is the first former US president to be criminally prosecuted as well as the first former president convicted of a crime.
In the special counsel’s August 2023 indictment, Trump was charged with conspiring to defraud the United States, corruptly obstructing an official proceeding and conspiring to do so, and conspiring against the right of Americans to vote. He pleaded not guilty.
Trump’s trial had been scheduled to start on March 4 before the delays over the immunity issue. Now, no trial date is set. Trump made his immunity claim to the trial judge in October, meaning the issue has been litigated for about nine months.
In a separate case brought in New York State court, Trump was found guilty by a jury in Manhattan on May 30 on 34 counts of falsifying documents to cover up hush money paid to a porn star to avoid a sex scandal before the 2016 election.
Trump also faced criminal charges in two other cases. He pleaded not guilty in those and called all the cases against him politically motivated.
A lawyer for the special counsel’s office told the Supreme Court during arguments that the “absolute immunity” sought by Trump would shield presidents from criminal liability for bribery, treason, sedition, murder and, as in this case, trying to overturn the proper results of an election and stay in power.
During the arguments, justices asked hypothetical questions involving a president selling nuclear secrets, taking a bribe or ordering a coup or political assassination.
If such actions were official conduct, Trump’s lawyer argued, a former president could be charged only if first impeached by the House of Representatives and convicted in the Senate – something that has never happened in US history.
In a May Reuters/Ipsos poll, just 27 per cent of respondents – nine per cent of Democrats, 50 per cent of Republicans, and 29 per cent of independents – agreed that presidents should be immune from prosecution unless they have first been impeached and convicted by Congress.
Smith, seeking to avoid trial delays, had asked the justices in December to perform a fast-track review after Trump’s immunity claim was rejected by US District Judge Tanya Chutkan that month.
Trump opposed the bid. Rather than resolve the matter promptly, the justices denied Smith’s request and let the case proceed in a lower court, which upheld Chutkan’s ruling against Trump on February 6.
The immunity ruling came 20 weeks after Trump on February 12 sought relief from the Supreme Court. By contrast, it took the court less than nine weeks in another major case to reinstate Trump to the presidential primary ballot in Colorado after he appealed a lower court’s ruling that had disqualified him for engaging in an insurrection by inciting and supporting the January 6, 2021 attack on the US Capitol by his supporters.
The timeline of the court’s immunity ruling likely does not leave enough time for Smith to try Trump on federal election subversion charges and for a jury to reach a verdict before voters head to the polls.
Trump took numerous steps to try to reverse his 2020 loss to Biden.
Federal prosecutors have accused Trump of pressuring government officials to overturn the election results and encouraging his supporters to march to the Capitol on January 6, 2021 to push Congress not to certify Biden’s victory, based on false claims of widespread voting fraud.
Trump supporters attacked police and stormed the Capitol, sending lawmakers and others fleeing. Trump and his allies also are accused of devising a plan to use false electors from key states to thwart certification.
Not since its landmark Bush versus Gore decision, which handed the disputed 2000 US election to Republican George W. Bush over Democrat Al Gore, has the Supreme Court played such an integral role in a presidential race.
Trump also faces election subversion charges in state court in Georgia and federal charges in Florida brought by Smith relating to keeping classified documents after leaving office.
If Trump regains the presidency, he could try to force an end to the prosecution or potentially pardon himself for any federal crimes.
Reacting to the ruling, Trump spoke about the ruling on his social media platform, arguing that the Supreme Court’s decision “should end all of crooked Joe Biden’s Witch Hunts against me”.
He said the ruling was a “big win for our constitution and democracy”.
The former president specifically cited his Manhattan hush-money case, in which he was charged with 34 counts of falsifying business records. He is slated to be sentenced this month in the hush-money case.
Trump also cited the New York Attorney General civil case against his businesses’ fraudulent practices and the E. Jean Carroll defamation case.
But Mike Johnson, the Republican House speaker, welcomed the immunity decision. He said it was a victory for Trump “and all future presidents” and, on the principle, added that the court “clearly stated that presidents are entitled to immunity for their official acts.
“This decision is based on the obviously unique power and position of the presidency, and comports with the constitution and common sense”.
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