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The Supreme Court’s six Republicans issued a ruling Monday that gives Donald Trump such broad immunity from prosecution that it is unlikely there would be any legal constraints on his conduct if he returns to the White House, with the court’s three Democrats dissenting.
Trump v. United States It is an astounding view that presidents enjoy broad immunity from criminal prosecution whenever they use the powers of their office — essentially, a license to commit crimes.
Overall, Chief Justice John Roberts’ majority opinion came to three conclusions. First, when the president takes any action pursuant to the powers vested in him by the Constitution itself, his authority is “conclusive and exclusive,” and therefore he cannot be sued. So, for example, the president cannot be sued for pardoning someone because the Constitution explicitly gives the president “the power to grant reprieves and pardons for crimes against the United States.”
For months, a question has hung over the case: whether presidential immunity is so broad that the president can order the military to assassinate a political opponent. When the case was heard in a lower court, a judge asked whether Trump could be indicted if he Ordered “SEAL Team 6 to assassinate political opponents” Trump’s lawyer responded that he couldn’t do that unless Trump had previously been successfully impeached and convicted for the offense.
Roberts’s view trump cardYet the court seemed to go further than Trump’s lawyers. After all, the Constitution states that the president “shall be Commander in Chief of the Army and Navy of the United States.” So if the president’s power is “conclusive and exclusive” when he exercises his constitutional powers, the court seemed to rule that, yes, Trump could order the military to assassinate one of his political opponents. And there was nothing he could do about it.
Judge Ketanji Brown Jackson Dissent“From this day forward, future presidents will have free rein to exercise their authority as commander in chief, their diplomatic powers, and all of the broad law enforcement powers provided by Article II of the Constitution, including in ways that Congress deems criminal and that could have serious consequences for the rights and liberties of Americans.”
Roberts’ second conclusion is that the president also enjoys “constructive immunity from criminal prosecution for conduct at least outside the scope of his official duties.” Thus, if the president’s conduct touches even the “periphery” of his official authority (the “outer sphere” of that authority), then the president enjoys strong constructive immunity from prosecution.
The second form of immunity applies when the president uses powers not explicitly mentioned in the Constitution, and is quite broad—probably even extending to conversations between the president and his staff.
The court also said that the second form of immunity is very strong. As Roberts wrote, “The President must therefore be immune from prosecution for official conduct unless the government can prove that imposing a criminal injunction on that conduct would constitute a criminal offense.” There is no “danger of encroachment upon the powers and functions of the executive branch”.”
Additionally, Roberts’ opinion details how broad such immunity would be in practice. For example, Roberts claims that Trump is immune from prosecution because of conversations he had with senior Justice Department officials in which he allegedly urged them to pressure states to “replace lawful electors” with fraudulent members of the Electoral College who would vote to re-elect Trump.
Roberts wrote that the “executive branch has ‘exclusive power and absolute discretion’ to determine which crimes to investigate and prosecute,” so Trump’s conversations with Justice Department officials fall within his “decisive and exclusive authority.” By this logic, if Trump ordered the Justice Department to arrest every Democrat who holds elected office, he could not be charged with a crime.
In addition, Roberts said in other parts of his opinion that any shifts between Trump and his advisers or subordinates could not be a basis for prosecution. For example, in explaining why Trump’s attempt to pressure Vice President Mike Pence to “fraudulently change the results of the election” might not be prosecuted, Roberts noted that the vice president often serves as “one of the president’s closest advisers.”
Finally, Roberts did acknowledge that the president could be indicted for “unofficial” actions. For example, if Trump personally tried to shoot then-presidential candidate Joe Biden before the 2020 election, rather than ordering a subordinate to do so, Trump could be indicted for murder.
But even this caveat to Roberts’s blanket immunity decision is not very strong. “In distinguishing between official and unofficial conduct, the court may not inquire into the President’s motives,” Roberts wrote. Roberts even limits the ability of prosecutors to go after a president who accepts bribes in exchange for official actions, such as pardoning a criminal who bribed the president. In Roberts’ words, prosecutors may not “admit testimony or private records of the President or his advisers in connection with an investigation of the official conduct itself.”
This means that while the president can be indicted for “unofficial” conduct, prosecutors may not be able to use evidence drawn from the president’s “official” conduct to prove that he committed that crime.
The practical implications of the ruling are staggering. As Justice Sonia Sotomayor wrote in her dissent, “Imagine a President who, in an official speech, stated that he intended to stop at nothing to prevent a political opponent from passing legislation that he opposed,” Roberts’ opinion said that the subsequent murder charge “cannot include a public admission by the President of premeditated intent to support the claim” that the President intended to murder.
In other words, Monday’s ruling ensures that Trump will face little legal scrutiny if he returns to power. trump carda future president could almost certainly order the assassination of his opponents. He could use the power of the presidency to commit countless crimes. He could order his subordinates to do almost anything.
There was nothing that could be done about him.
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