Washington.- The U.S. Supreme Court ruled Monday that former President Donald Trump is entitled to substantial immunity from criminal prosecution, a decision that will almost certainly delay the trial of the case against him on charges of conspiring to subvert the 2020 election beyond the upcoming November vote.
The vote was 6 to 3, split along party lines.
Chief Justice John Roberts Jr., who wrote the majority opinion, said Trump had at least presumptive immunity for his official acts. He added that the trial judge must conduct an intensive factual examination to separate official from unofficial conduct and assess whether prosecutors can overcome the presumption protecting Trump.
This will entail significant delays, and the prospects for a trial before the election appear remote. If Trump prevails at the polls, he could order the Justice Department to drop the charges.
Broad immunity for official conduct is needed, the court’s chief justice wrote, to protect “a vigorous and independent executive.”
“The President, therefore, cannot be prosecuted for exercising his fundamental constitutional powers, and is entitled, at a minimum, to presumptive immunity from prosecution for all of his official acts,” Chief Justice Roberts wrote. “That immunity applies equally to all occupants of the Oval Office, regardless of political stance, public policy, or party.”
In dissent, Justice Sonia Sotomayor wrote that the decision was seriously misguided.
“Today’s decision to grant former presidents immunity from prosecution reshapes the institution of the presidency,” he wrote. “It makes a mockery of the foundational principle of our Constitution and system of government that no man is above the law.”
Chief Justice Roberts wrote that it was not the Supreme Court’s job to sift through the evidence and separate protected conduct from the rest. “That analysis,” he wrote, “is ultimately best left to the lower courts to conduct in the first instance.”
But he gave some guidelines.
Trump, he wrote, is “absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.”
The trial judge, the chief justice wrote, must determine whether prosecutors can overcome Trump’s presumed immunity for his communications with Vice President Mike Pence.
“We therefore remand to the district court to evaluate in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the vice president’s oversight of the certification proceeding in his capacity as presiding officer of the Senate would pose any danger of intrusion on the authority and functions of the executive branch,” he wrote.
Other parts of the case against Trump, the chief justice said, “require a careful analysis of the indictment’s extensive and interrelated allegations.”
Overall, the majority opinion was a broad defense of executive power and a detailed prescription for delay.
In dissent, Justice Sotomayor wrote that “the long-term consequences of today’s decision are severe.”
“The court effectively creates a law-free zone around the president, upending the status quo that has existed since the founding,” he wrote, adding: “The president of the United States is the most powerful person in the country, and arguably the world. When he uses his official powers in any way, the majority reasoned, he will now be protected from criminal prosecution.”
He gave examples: “Order Navy Seal Team 6 to assassinate a political rival? Immune. Stage a military coup to cling to power? Immune. Accept a bribe in exchange for a pardon? Immune. Immune, immune, immune.”
Trump has maintained that he is entitled to absolute immunity from prosecution, relying on a broad understanding of the separation of powers and a 1982 Supreme Court precedent that recognized such immunity in civil cases for actions taken by presidents within the “outer perimeter” of their official responsibilities.
The lower courts rejected that claim.
“Regardless of any immunities a sitting president may enjoy,” wrote Judge Tanya Chutkan of the U.S. District Court in Washington, “the United States has only one chief executive at a time, and that office does not confer lifetime immunity.”
A unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit agreed. “For purposes of this criminal case, former President Trump has become Citizen Trump, with all the defenses of any other criminal defendant,” the panel wrote in an unsigned decision. “But any executive immunity that may have protected him while he served as president no longer protects him from this prosecution.”
In admitting the case, the Supreme Court said it would decide the question “whether a former president enjoys presidential immunity from criminal prosecution for conduct allegedly related to official acts during his term in office and, if so, to what extent.”
During this period, the court heard two other cases related to the attack on the Capitol on January 6, 2021.
In March, the court unanimously rejected an attempt to exclude Trump from voting under Section 3 of the 14th Amendment, which makes people who participated in the insurrection ineligible to hold public office. The court, without discussing whether Trump was covered by the provision, ruled that states cannot use it to exclude presidential candidates from the ballot.
On Friday, the court ruled that federal prosecutors had improperly used an obstruction law to prosecute some members of the pro-Trump mob that stormed the Capitol on Jan. 6. Two of the four charges against Trump are based on that law.
The court decided the case restoring Trump to the ballot at a rapid pace, hearing arguments a month after agreeing to it and issuing its decision a month after that.
The immunity case has moved at a considerably slower pace. In December, in asking the justices to preempt the appeals court and hear the case immediately, Jack Smith, the special prosecutor overseeing the prosecution, wrote that “it is of imperative public importance that defendant’s immunity claims be resolved by this court.” He added that “only this court can definitively resolve them.”
The justices denied Smith’s petition 11 days after he filed it, in a brief order with no notable dissents.
After the appeals court ruled against Trump, he asked the Supreme Court to intervene. Sixteen days later, on February 28, the court agreed to hear his appeal and set the hearing for nearly two months later, on the last day of the term. Another two months have passed since then.
At the hearing, several of the conservative justices appeared unwilling to examine the details of the allegations against Trump. Instead, they said, the court should issue a ruling that applies to presidential power in general.
“We are writing a rule for the ages,” Justice Neil Gorsuch said.
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