Supreme Court rules Trump has broad immunity
6-3 ruling limits Jan. 6 indictment
Also in today’s edition of ‘Regular Order’ for July 2, 2024:
Biden denounces Court ruling.
House panel sues to get Biden tapes.
Democrats still saying little about Biden debate.
SUPREME COURT. Americans often like to say that no one should be above the law in the United States. But the U.S. Supreme Court ruled on Monday that one person is distinctly above the law most of the time - and that one person is the President of the United States.
CHIEF JUSTICE. "The nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority; he is also entitled to at least presumptive immunity from prosecution for all his official acts; there is no immunity for unofficial acts."
TRUMP IMMUNITY. Before we dig into the ruling and sample some of the reaction, you can read the Supreme Court's opinion in the Trump immunity case at this link.
JANUARY 6. In a ruling which stemmed from federal criminal indictments brought against former President Donald Trump - over the investigation of the Jan. 6 attack on the U.S. Capitol by his supporters - the Supreme Court carved out a significant new standard for presidential immunity from criminal investigation.
RULING. "The President is not above the law," Chief Justice John Roberts wrote for the Court's 6-3 majority in the Trump-immunity case. But while Roberts proclaimed that - he immediately set out major exceptions, authoring a ruling which could make it difficult to bring a President to account for anything.
OPINION. "(U)nder 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," Roberts wrote. "That immunity applies equally to all occupants of the Oval Office.
TRUMP. The Court’s decision also directly limited the current case against Trump, specifically telling prosecutors that any evidence from inside the White House is off-limits for a trial.
Presidents cannot be indicted based on conduct for which they are immune from prosecution. On remand, the District Court must carefully analyze the indictment’s remaining allegations to determine whether they too involve conduct for which a President must be immune from prosecution. And the parties and the District Court must ensure that sufficient allegations support the indictment’s charges without such conduct. Testimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial.
TRUMP. As one might expect, Trump loudly celebrated his victory before the High Court. "The Supreme Court decision is a much more powerful one than some had expected it to be," Trump wrote on his Truth Social website, as he denounced the various criminal charges against him. "Many of these fake cases will now disappear, or wither into obscurity."
BIDEN. Returning from Camp David - where he had been meeting with aides about his troubled reelection bid, President Biden denounced the Court's ruling, arguing it opens a pathway for a lawless President in the future. "Today's decision almost certainly means that there are virtually no limits to what a President can do," Biden said. "The only limits will be self imposed by the President alone."
PENCE. One of the central efforts by Donald Trump to overturn the election results of 2020 - and illegally keep himself in office - was to pressure Vice President Mike Pence to reject the electoral votes of key states where Trump had lost. That is key to Trump’s indictment and what happened on Jan. 6. But the Chief Justice wrote in his ruling that even if Trump was cooking up a scheme with Pence to stay in office, the President has a presumption of immunity.
Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.
ROAD MAP. I'm not a legal expert, but I've read more than a few Supreme Court rulings over the past 40 years. This decision in some ways reads like a road map for how a President *could* violate the law and not be held accountable, simply by sticking with the idea of actions which are characterized as ‘official conduct.’
JUST SUPPOSE. Let’s deal with a few hypotheticals about this - which is routine for the Justices during their arguments.
ARREST. The President orders Seal Team 6 to capture and kill a main election opponent. That's arranged with military leaders and the Vice President, discussing it as part of their official responsibilities. Would that action be immune from prosecution?
ELECTORAL VOTE. What if a President conspires with Justice Department officials to declare invalid the election results of certain states in order to ensure victory for himself, or his party. "Just say the election was corrupt." That could be an official act.
PROSECUTION. Can a President order the Justice Department to prosecute anyone deemed a political opponent - simply by ordering the Attorney General to do so, and then defend that as an official act?
WATERGATE. Can a President order the FBI, DOJ, or CIA to break into the headquarters of the opposition party as an 'official act?'
RUB OUT. What if a President wanted to get rid of members of Congress, or Justices of the Supreme Court who were standing in his way? Could that be achieved - as an official act - simply by keeping the plans within the government?
ANSWERS. The answers to all of these hypothetical questions should immediately be 'No.' But after this Supreme Court ruling - I’m not sure that's guaranteed. Feel free to leave your own views in today’s comments section.
BOTH SIDES. Remember - your answers about conduct by the Executive should be the same for any President, no matter which party that President represents, or who that President might be named. Go through those examples above once by thinking it is Trump, and once for Biden. Your answers should not change.
CAPITOL HILL. It won't shock anyone reading this newsletter that the reaction to the Court's decision simply split down partisan lines in the halls of Congress. That's where we are right now as a nation.
SCHUMER. "This is a sad day for America," said Senate Majority Leader Chuck Schumer. "The very basis of our judicial system is that no one is above the law. Treason or incitement of an insurrection should not be considered a core constitutional power afforded to a President."
L’ETAT, C’EST MOI. Democrats had a theme about the Court’s ruling, which brought back historical concerns. "Their decision fundamentally reshapes the presidency. And makes a President, a king," said Rep. Adam Schiff (D-CA).
GOP. On the other side, most Republicans looked at this ruling from one vantage point - how it affects Donald Trump. "Our nation's highest court has confirmed that Joe Biden's weaponization of the DOJ against Donald Trump is unconstitutional," said Rep. Brian Babin (R-TX).
SPEAKER. "The Court clearly stated that presidents are entitled to immunity for their official acts," said House Speaker Mike Johnson. "This decision is based on the obviously unique power and position of the presidency, and comports with the Constitution and common sense."
DELAY. Because the Supreme Court took so long to deal with this case, it was already unlikely that Trump would face trial on his Jan. 6 charges this year. This decision simply adds to those delays, ensuring there will be several extra levels of legal jousting which will have to be dealt with - before any trial can begin.
DEFINITION. One of the biggest legal fights will be over the definition of 'official' and 'unofficial acts' - as well as how far an official act can go into the realm of wrongdoing, before a President loses immunity. All of that will have to be fleshed out by lower courts.
REPLAY. Frankly, it wouldn't surprise me that part of this case makes its way through lower courts and back to the U.S. Supreme Court - not on the merits of any Trump trial - but on the question of whether certain ‘official’ acts are covered by this immunity ruling.
GEORGIA. One area where Trump clearly could still be in legal trouble in this investigation is for his efforts to lean on state officials - like his infamous phone call asking the Georgia Secretary of State to 'find' enough votes for Trump to win in 2020. That does not seem like any kind of ‘official’ act.
DEBATE AFTERMATH. When President Biden spoke last night at the White House on the Trump ruling by the U.S. Supreme Court, Mr. Biden did not take any questions - which meant reporters couldn’t ask him about the aftermath of his continuing political troubles from last week’s debate.
CAMPAIGN. Amid all of the talk about whether he should even continue on as his party’s nominee, the President will do some work for November this evening in Virginia, as he goes to a fundraising event in the Washington, D.C. suburbs. We'll see whether reporters get a chance for any Q&A with him today.
SILENCE. The fact that so many Democrats in Congress aren’t saying much in public - while panicking behind the scenes - is a toxic mixture for the President. NBC reported last night that Biden hasn't even spoken with Senate Majority Leader Chuck Schumer or House Democratic Leader Hakeem Jeffries. (Ouch.)
SCRANTON, PA. - (AP). "Pennsylvania Sen. Bob Casey said Monday that President Joe Biden is able to run a strong race and serve a second term in the Oval Office, standing by his close ally in the critical battleground state following a disastrous debate performance."
DECISION TIME. It’s obvious that Democrats in Congress are still freaked out by what happened last week. I think the only way anything changes is if Biden’s poll numbers start to crater - or if lawmakers become convinced that Biden is going to take them down the drain with him.
BIDEN TAPES. Republicans on the House Judiciary Committee filed a federal lawsuit on Monday against the U.S. Attorney General, seeking the tape recordings of President Biden made during an investigation of classified documents found in Biden's possession from his time as Senator and Vice President.
SUIT. "This dispute is principally about a frivolous assertion of executive privilege," Republicans asserted. The Justice Department has already handed over transcripts of the interviews done with Biden - but the GOP wants the actual audio tapes.
HUR. Why do they want the tapes? Mainly because they want to play Biden’s actual answers. Remember - Special Counsel Robert Hur characterized Biden 'as a sympathetic, well-meaning, elderly man with a poor memory' - citing that as the main reason for not bringing any criminal charges.
GOP. In the aftermath of last week's debate, Republicans are even more determined to get the audio. "It is now clear why the Biden-Hur tapes were kept from the public," said Rep. Matt Rosendale (R-MT).
ONE MORE THOUGHT. After Monday’s Supreme Court ruling in the Trump case, could President Biden be charged with any crime if he ordered the Justice Department to erase those tape recordings? It could be seen as an official act, because it clearly involves the office of the President. Just asking.
OOPS. WISH-TV in Indianapolis reported last night that Rep. Victoria Spartz (R-IN) was charged with a firearms violation at Dulles International Airport outside Washington, D.C. last Friday - as an unloaded handgun was found in her carry on bag.
CARRY ON. Spartz's office said the Indiana Republican had gone to the airport with an empty handgun in her suitcase. It had no magazine or bullets. And then it was discovered while going through security before she boarded a flight to Europe. She was issued a citation by airport security.
RAP SHEET. A Tennessee man has been sentenced to one year and one day in prison for his actions on Jan. 6. Devin McNulty repeatedly pushed against the riot shields of police officers guarding the North Door to the Capitol, as Trump supporters repeatedly tried to force their way into the building.
DATA. Some of you have asked for more details about those who have been arrested and charged in the Jan. 6 investigation. Various people are creating databases about those defendants to provide us with additional insight. Check this spreadsheet from the people who do the 'Jan6thData' account on Twitter.
MUSE OF HISTORY. July 2, 1864. On this date, President Abraham Lincoln signed into law a plan allowing each state to send two statues for display at the U.S. Capitol. Those to be honored should be 'illustrious for their historic renown or for distinguished civic or military service' in each state. At the time, supporters probably never imagined southern states would use this law to honor the leaders of the Confederacy, as statues still stand in the Capitol of Jefferson Davis (1931, Mississippi), Alexander Hamilton Stephens (1927, Georgia). The statue of Robert E. Lee (1909, Virginia) was removed by the state of Virginia in 2020.
LEGISLATIVE PROGRAM:
The House next has votes on July 8.
The Senate next has votes on July 8.
Check President Biden’s schedule.
Follow me on Twitter @jamiedupree.
Email me at jamiedupree@substack.com
If you want to say ‘thanks’ - you can buy me a cup of coffee.
C/p with permission from a friend who taught Constitutional Law:
I’m not going to sugarcoat it – today’s decision by SCOTUS in Trump v. United States is bad. Is it as bad as some people are reporting? I’m going to leave that to you all to decide.
For the TL;DR crowd, here are some quick answers to the questions people have already asked me:
1. Does this mean that all the cases against Trump will be dismissed and he will no longer have to face any criminal charges? NO.
2. Did SCOTUS just say that all presidents can do whatever they want without any consequences? NO.
3. Did SCOTUS just make prosecuting a president (or former president) for their actions while in office exponentially more difficult? YES.
It is not insignificant that the ruling was a 6-3 decision along ideological lines (in other words, the 6 conservative justices (Roberts, Alito, Thomas, Gorsuch, Kavanaugh, and Barrett) all agreed with the ruling, and the 3 liberal justices (Sotamayor, Kagan, and Jackson) all dissented.
The actual holding in this case reads, “Under our constitutional structure of separated powers, 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.”
I’ll break this down for you into three parts:
The court ruled that a president or former president has absolute immunity for official actions that are part of their core Constitutional powers. Absolute immunity means they can *never* be prosecuted for these actions. The core Constitutional powers of the President are the powers listed in Article II of the Constitution. These powers are to sign or veto legislation, command the armed forces, ask for the written opinion of their Cabinet, convene or adjourn Congress, grant reprieves and pardons, and receive ambassadors. That means if what the president did was an official act in furtherance of any of those things, the President or former President cannot be prosecuted for it in any way at any time. For example, if the President were to grant a pardon in furtherance of an illegal scheme, he could not be criminally prosecuted for it. Or, if the President were to order the armed forces to commit an illegal act or commit a legal act in furtherance of an illegal scheme, the President could not be criminally prosecuted for it. In fact, SCOTUS specifically mentioned that the President would have absolute immunity in regard to his threats to fire Acting Attorney General Jeff Rosen because choosing who fills the Cabinet is part of the core Constitutional powers of a President.
You’re about to say that the President does way more stuff than just those seven things, though. Correct. For other official duties, the President has what’s called presumptive immunity. What this means is that, legally, courts will start with the assumption that the President/former President has immunity for that action, but a prosecutor can rebut that presumption (use evidence to show that such immunity should not be granted – ie: evidence that the action was not really an official action, but a personal action). For example, Trump’s pressure campaign on VP Pence to refuse to certify the results of the 2020 election would have the presumption of immunity because it is an official duty of the President to discuss official duties with the Vice President and other members of his cabinet. (This example was specifically mentioned in SCOTUS’s decision as being a case where there would be presumptive, not absolute, immunity).
Both absolute and presumptive immunity apply ONLY to official actions. Anything the President/Former President was doing that was not part of his official duties can still give rise to criminal liability. For example, if the President randomly punched someone in the face, he could still be criminally prosecuted for assault unless it was, somehow, part of his official duties to punch that guy (like, I don’t even know how it could be, but stranger things have happened). Or, a more pertinent example, if he was no longer President at the time he refused to return official government documents when requested to do so, it would not be part of his official duties because he was no longer President and, therefore, no longer *had* any official duties.
In a portion of the ruling that compounds its awfulness, SCOTUS said, in determining what’s considered an official action and not an official action, courts may NOT look at the President’s motives for those actions. Nor conduct which falls under absolute immunity cannot even be used as evidence in a criminal case where the President/former President is criminally charged. It is this part of the ruling that is the most alarming part about this already very alarming case. It cuts prosecutors off from using evidence that would be essential to rebutting the presumption of immunity and to proving guilt. This is an example of how SCOTUS is trying to make it *seem* like absolute immunity for all actions of a President isn’t being granted when, in reality, they are making it nearly impossible to rebut the presumption of immunity and simultaneously, making it exponentially harder to prove cases where a President *doesn’t* have immunity.
SCOTUS then returned the case to the lower court to determine which, if any, of the actions with which former President Trump is charged fall under absolute immunity or presumptive immunity. The charges that fall under presumptive immunity will still go forward IF Special Prosecutor Jack Smith can rebut the presumption that the action Trump was taking was an official act. Does this mean that the Trump cases will take even longer to get to trial? Absolutely. However, that ship had already sailed long before today because none of them were on track to be tried prior to the November election, anyway (partly because SCOTUS took up this case and everything had to be put on pause until it was decided).
This ruling fundamentally reshapes the office of the President and the idea in our country that “no one is above the law” because, in large measure, SCOTUS has just place the President above the law. Impeachment for a President’s actions is still possible, for treasonous/criminal actions a President might take, should the political will exist to both impeach and convict. This is small consolation as we have already seen the lack of political will to do so when a President is of the same party as the majority in one or both houses.
What does this mean for us going forward? It means that the person we elect to put in the office of the President needs to be trustworthy beyond reproach because, otherwise, whoever is in office can use their power to push us into authoritarianism and damage our democracy beyond recognition.
I hope this helps you understand this decision better.
Richard Nixon needed THIS Supreme Court 50 years ago. This court never would have ordered the release of the tapes and since the Watergate break-in was largely plotted and carried out in-house, there’s a strong argument this court would have ruled Nixon was operating within his official duties. Both sides of the aisle should be equally terrified by this. God help us if the American voters put Trump back into power. Here’s something even more terrifying to contemplate — imagine what a future President Marjorie Taylor Greene could do under that immunity ruling.