I’m still sort through Supreme Court’s Immunity RulingAnd while it’s too early for definitive interpretations (scholars will argue about it for years), it’s not too early for three broad conclusions.
First, and most importantly, the Supreme Court gave presidents a dangerous amount of discretion. Court maybe say K Presidents are not above the law, but in fact, it established an unusually broad field of absolute immunity for presidents (as Justice Sonia Sotomayor noted in dissent, potentially shielding presidents from prosecution for bribery and murder) and a non-immune one. Hard test for prosecuting acts.
In the majority opinion, Chief Justice John Roberts wrote that the president must be immune from prosecution for an official act unless the government can show that applying a criminal sanction to that act would not “risk an intrusion upon the powers and functions of the executive branch.” This is a high bar to clear.
To understand the most dangerous potential implications of this action, consider that the president has extraordinary authority under the Sedition Act to send troops onto American streets. Then, once deployed, those troops would be under the command of someone who would almost certainly enjoy complete immunity for orders given to them.
Second, forget any idea that Special Counsel Jack Smith might try Donald Trump before the election. The Supreme Court remanded the case to lower courts for additional proceedings to determine whether Trump can be tried. anyone His official acts during the plot to subvert the election. It is hard to imagine circumstances where the remaining legislative questions could be resolved before November.
Third, Trump is still in serious legal trouble — but only if he loses the election. Even if Trump is ultimately deemed immune for all of his official acts, he could still be prosecuted for private acts. Meanwhile Oral argumentsTrump’s lawyer acknowledged that many of Trump’s criminal acts were private and not in furtherance of his official duties.
It was a private act when Trump “turned to a private attorney who was willing to spread false claims of election fraud to further his challenges to the election results.” It was also a private act when Trump “conspired with another private attorney to cause the filing with the court of a verification signed by the petitioner that contained false allegations to support the challenge.”
This means Smith still has a case against Trump — unless Trump wins the election. He could then use his authority over the Justice Department to drop the case against him, and potentially recuse himself from both the January 6 action in Florida and the classified documents action.
The bottom line is clear: Trump’s fate (and potentially even the rule of law) rests entirely in the hands of the American people. They alone will decide whether he can be held responsible.