US Supreme Court grants Trump immunity for official acts as president

The former president has managed to delay the start of the trial over his efforts to subvert the results of the 2020 elections, which he lost to Joe Biden

Donald Trump gestures as he speaks during a rally to contest the certification of the 2020 U.S. presidential election results by the U.S. Congress, in Washington, U.S, January 6, 2021.
Donald Trump gestures as he speaks during a rally to contest the certification of the 2020 U.S. presidential election results by the U.S. Congress, in Washington, U.S, January 6, 2021.Jim Bourg (REUTERS)
Miguel Jiménez

The United States Supreme Court has ruled that presidents have immunity from criminal prosecution for acts performed in the exercise of their office. In a ruling of great importance for the legal future of former president Donald Trump, the justices did not grant him absolute immunity, but rather partial immunity — meaning it only covers official acts. The sentence comes just over four months before the November 5 elections in which Trump is hoping to return to the White House and days after a television debate that has raised doubts about the form of President Joe Biden, his expected rival.

“The nature of presidential power entitles a former president to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts,” states the Supreme Court ruling, which is a win for Trump.

With this ruling, the Supreme Court has overturned lower court rulings that denied Trump immunity, and ordered them to figure out how to apply the decision to the ex-president’s case. The sentence was approved 6-3, with the six conservative justices — including the three appointed by Trump himself — ruling in favor of immunity. The three progressive justices voted against the decision.

“The president enjoys no immunity for his unofficial acts, and not everything the president does is official. The president is not above the law. But under our system of separated powers, the president may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts,” states the 119-page ruling, written by Chief Justice John Roberts. “That immunity applies equally to all occupants of the Oval Office.”

The ruling is in response to the Washington case against Trump, in which the former president is accused of four charges over his efforts to subvert the results of the 2020 presidential elections, which he lost to Joe Biden.

The Supreme Court has sent back the case to U.S. District Judge Tanya Chutkan, who will have to decide what were official acts and what were not. The Supreme Court, however, has already expressly defined some of them: it shields the communications between Trump and his attorney general, which were presented as part of the prosecution’s evidence that Trump tried to interfere in the 2020 election results. This decision weakens the prosecution.

Trump’s first triumph was in being able to delay the start of the trial, which was scheduled to begin on March 4. Now, it is almost impossible that he will sit in the dock before the presidential elections on November 5. If he wins the election, he will also be able to order that the case against him be dropped or even grant himself a pardon.

In parallel, the Supreme Court on Friday limited the scope of the crime of obstruction of an official proceeding. In the Washington criminal case, Trump is charged with: conspiracy to defraud the U.S. government, conspiracy to obstruct an official proceeding, obstruction or attempted obstruction of an official proceeding and conspiracy to violate civil rights. The second and third counts concern the charge at the center of Friday’s ruling, and the Supreme Court’s decision will make it much more difficult for Trump to be found guilty of these counts.

The Supreme Court — which has a conservative supermajority — limited this criminal offense to cases related to the destruction of evidence, documents, records, objects and other items used in an official proceeding. It does not believe the charge is applicable to the rioters who stormed the U.S. Capitol in Washington on January 6, 2021.

While this case was pending before the Supreme Court, Trump became the first former U.S. president to be convicted in a criminal trial. He is awaiting sentencing on July 11, after a jury found him guilty of 34 counts of falsifying business records. The jury found that Trump falsified these record to hide hush money paid to porn actress Stormy Daniels to stop a scandal about an alleged extramarital affair hurting his 2016 presidential campaign. In that case, it was obvious that Trump was not carrying out official acts, so the sentence should not affect that conviction.

It is less clear how Monday’s ruling will affect the other cases against Trump: in Florida, he has been charged with withholding confidential documents in his Mar-a-Lago mansion, in which Trump also claimed immunity; and in Georgia, he has been charged for his efforts to subvert the state results of the 2020 presidential election.

This is a landmark case that may draw the contours of presidential power for the future. No president or former president has been impeached before Trump, so the Supreme Court had never had to rule on the issue before. “This case has huge implications for the presidency, for the future of the presidency, for the future of the country,” Judge Brett Kavanaugh said at the hearing.

The Supreme Court’s judicial year has been marked by cases involving the former president. In addition to Monday’s ruling on presidential immunity and last Friday’s ruling on the crime of obstructing an official proceeding — in which Trump was not directly involved — the Supreme Court has also ruled on whether the Republican should be excluded from the ballot for inciting the assault on the Capitol. The justices unanimously concluded that he could run in the Republican primaries — and by extension, the presidential election — arguing that it is up to Congress to determine whether someone is an insurrectionist.

Previous rulings

Both the federal judge hearing the case and the Court of Appeals to which Trump initially appealed flatly rejected the immunity argument. Judge Tanya Chutkan issued a harsh ruling, in which she said that being president “does not confer a lifelong ‘get-out-of-jail-free’ pass.” Trump’s lawyers appealed to the Washington Court of Appeals, which brought the case to a standstill, since whether or not the former president could be indicted and tried was in question.

The Court of Appeals also rejected the immunity argument with the unanimous vote of the three judges. “For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution,” the 57-page ruling said in its introduction. “It would be a striking paradox if the president, who alone is vested with the constitutional duty to ‘take care that the laws be faithfully executed,’ were the sole officer capable of defying those laws with impunity,” the ruling continued. “We cannot accept former president Trump’s claim that a president has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power.”

The judges in the Court of Appeals referred to the Watergate case to reject Trump’s claim of near-absolute immunity: “Recent historical evidence suggests that former presidents, including president Trump, have not believed themselves to be wholly immune from criminal liability for official acts during their presidency. President Gerald Ford issued a full pardon to former president Richard Nixon, which both former presidents evidently believed was necessary to avoid Nixon’s post-resignation indictment.”

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