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  • Writer's pictureThe San Juan Daily Star

Supreme Court says Trump is partly shielded from prosecution

People on their phones outside the Supreme Court in Washington after the Supreme Court decided on former President Donald Trump’s immunity case on Monday, July 1, 2024. In reactions mirroring the ideological split of the Supreme Court justices in their ruling granting presidents immunity for official actions, Republicans expressed triumph on Monday and Democrats dismay. (Haiyun Jiang/The New York Times)

By Adam Liptak

The Supreme Court ruled on Monday that former President Donald Trump is entitled to substantial immunity from prosecution, a decision that will almost surely delay the trial of the case against him on charges of plotting to subvert the 2020 election past the coming election in November.

The vote was 6-3, dividing along partisan lines.

Chief Justice John Roberts, writing for the majority, said Trump had at least presumptive immunity for his official acts. He added that the trial judge must undertake an intensive factual review to separate official and unofficial conduct and to assess whether prosecutors can overcome the presumption protecting Trump.

That will entail significant delays, and the prospects for a trial before the election seem vanishingly 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 chief justice wrote, to protect “an energetic, independent executive.”

“The president therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts,” Roberts wrote. “That immunity applies equally to all occupants of the Oval Office, regardless of politics, policy or party.”

In dissent, Justice Sonia Sotomayor wrote that the decision was gravely misguided.

“Today’s decision to grant former presidents criminal immunity reshapes the institution of the presidency,” she wrote. “It makes a mockery of the principle, foundational to our Constitution and system of government, that no man is above the law.”

Roberts wrote that it was not the Supreme Court’s job to sift through the evidence and to separate protected conduct from the rest. “That analysis,” he wrote, “ultimately is best left to the lower courts to perform in the first instance.”

But he issued guideposts.

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, should 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 assess 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 president of the Senate would pose any dangers of intrusion on the authority and functions of the executive branch,” he wrote.

Other parts of the indictment against Trump, the chief justice said, “requires a close analysis of the indictment’s extensive and interrelated allegations.”

In all, the majority opinion was a broad defense of executive power and a detailed recipe for delay.

In dissent, Sotomayor wrote that “the long-term consequences of today’s decision are stark.”

“The court effectively creates a law-free zone around the president, upsetting the status quo that has existed since the founding,” she wrote, adding: “The president of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution.”

She gave examples: “Orders the Navy’s SEAL Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”

Trump contended that he is entitled to absolute immunity from the charges, 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.

Lower courts rejected that claim.

“Whatever immunities a sitting president may enjoy,” Judge Tanya S. Chutkan of U.S. District Court in Washington wrote, “the United States has only one chief executive at a time, and that position does not confer a lifelong ‘get out of jail free’ pass.”

A unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit agreed. “For the purpose of this criminal case, former President Trump has become citizen Trump, with all of 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 against this prosecution.”

In agreeing to hear the case, the Supreme Court said it would decide this question: “whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”

The court heard two other cases this term concerning the attack on the Capitol on Jan. 6, 2021.

In March, the court unanimously rejected an attempt to bar Trump from the ballot under Section 3 of the 14th Amendment, which makes people who engage in insurrection ineligible to hold office. The court, without discussing whether Trump was covered by the provision, ruled that states may not use it to exclude candidates for the presidency 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 brisk pace, hearing arguments a month after agreeing to 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 leapfrog the appeals court and hear the case immediately, Jack Smith, the special counsel overseeing the prosecution, wrote that “it is of imperative public importance that respondent’s claims of immunity 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 without noted dissents.

After the appeals court ruled against Trump, he asked the Supreme Court to intervene. Sixteen days later, on Feb. 28, the court agreed to hear his appeal, scheduling arguments for almost two months later, on the last day of the term. Another two months have passed since then.

At the argument, several of the conservative justices did not seem inclined to examine the details of the charges against Trump. Instead, they said, the court should issue a ruling that applies to presidential power generally.

“We’re writing a rule for the ages,” Justice Neil Gorsuch said.

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