The Supreme Court ruled in a 6-3 opinion Monday that presidents are entitled to complete immunity from criminal prosecution for any exercise of their “core constitutional powers” and presumptive immunity for any remaining official actions.
The Justices also declared, however, that presidents do not enjoy immunity for “unofficial acts.”
Guidance is then provided to the lower courts on how to properly draw the distinction between a president’s official and unofficial conduct while in office.
With respect to the allegations leveraged against former President Donald Trump (R) specifically, the Court directly declared some of his acts to be immune while remanding the majority of allegations back to the lower courts for further consideration.
Justice Amy Coney Barrett agreed with most of the majority’s opinion, but expressed frustration that her colleagues decided to remand the case with so many unanswered questions.
The majority opinion was authored by Chief Justice John Roberts and joined in full by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. Justice Barrett joined the opinion in part. Justice Thomas and Barrett each filed separate concurring opinions.
Dissenting were Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, the three progressive justices on the Court. In addition to joining the opinion authored by Justice Sotomayor, Justice Jackson also filed a dissenting opinion of her own.
These dissenting Justices argued that the Court was wrong to grant any degree of presidential immunity, suggesting that it imprudently places the President above the rule of law.
The lower courts will now be responsible for deciding which of the former president’s actions in this case are eligible for immunity under the Supreme Court’s new framework.
Chief Justice John Robert’s Majority Opinion
“This case is the first criminal prosecution in our Nation’s history of a former President for actions taken during his Presidency,” Chief Justice Roberts wrote in the majority opinion. “Determining whether and under what circumstances such a prosecution may proceed requires careful assessment of the scope of Presidential power under the Constitution. The nature of that power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office.”
“At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute,” the Court concluded. “As for his remaining official actions, he is entitled to at least presumptive immunity.”
“Such an immunity is required to safe-guard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution,” the Justices wrote. “At a minimum, the President must be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.'”
“As for a President’s unofficial acts, there is no immunity. Although Presidential immunity is required for official actions to ensure that the President’s decision making is not distorted by the threat of future litigation stemming from those actions, that concern does not support immunity for unofficial conduct,” the opinion states. “The separation of powers does not bar a prosecution predicated on the President’s unofficial acts.”
The Justices also call out the lower courts for “render[ing] their decisions on a highly expedited basis” and explain that “they did not analyze the conduct alleged in the indictment to decide which of it should be categorized as official and which unofficial” because they “categorically rejected any form of Presidential immunity.”
The Court went on to declare that an inquiry into the president’s motives must not be made when drawing the distinction between official and unofficial conduct, as this would “risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose.”
They also state that an act may not be deemed to be unofficial simply because it violates a generally applicable law.
“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,” the Court concludes. “That immunity applies equally to all occupants of the Oval Office.”
Toward the end of the majority opinion, the Justices emphasize that the question posed by the case is one of “lasting significance,” asserting a need to take into consideration the consequences beyond those immediately related to this case because the answers they provided could have a “profound” impact on the nation’s future.
“Our Nation has never before needed an answer,” the Justices state. “But in addressing that question today, unlike the political branches and the public at large, we cannot afford to fixate exclusively, or even primarily, on present exigencies. In a case like this one, focusing on ‘transient results’ may have profound consequences for the separation of powers and for the future of our Republic.”
Justice Clarence Thomas’ Concurring Opinion
In his concurring opinion, Thomas outlines “another way in which this prosecution may violate our constitutional structure,” calling into question the process by which the Special Counsel was appointed to prosecute former President Trump.
“Few things would threaten our constitutional order more than criminally prosecuting a former President for his official acts,” Thomas stated. “Fortunately, the Constitution does not permit us to chart such a dangerous course.”
“I am not sure that any office for the Special Counsel has been ‘established by Law,’ as the Constitution requires,” Thomas wrote. “If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people.”
“When the Attorney General appointed the Special Counsel, he did not identify any statute that clearly creates such an office,” Thomas explained. “Nor did he rely on a statute granting him the authority to appoint officers as he deems fit, as the heads of some other agencies have. Instead, the Attorney General relied upon several statutes of a general nature.”
“Even if the Special Counsel has a valid office, questions remain as to whether the Attorney General filled that office in compliance with the Appointments Clause,” continued Thomas.
“Respecting the protections that the Constitution provides for the Office of the Presidency secures liberty. In that same vein, the Constitution also secures liberty by separating the powers to create and fill offices,” Thomas stated. “And, there are serious questions whether the Attorney General has violated that structure by creating an office of the Special Counsel that has not been established by law.”
“We must respect the Constitution’s separation of powers in all its forms, else we risk rendering its protection of liberty a parchment guarantee,” Thomas concluded.
Justice Amy Coney Barrett’s Concurring Opinion
Barrett explains in her concurring opinion that she agreed with all but one section of the majority opinion, taking issue with their interpretation of certain underlying principles concerning the operation of immunity with respect to a former president.
She also criticized their decision to leave it up to the lower courts to answer provide answers to a number of questions in this case.
“The Court describes the President’s constitutional protection from certain prosecutions as an ‘immunity,'” Barrett said. “As I see it, that term is short-hand for two propositions: The President can challenge the constitutionality of a criminal statute as applied to official acts alleged in the indictment, and he can obtain interlocutory review of the trial court’s ruling.”
Although Barrett expresses agreement with the majority on the first point, she goes on to take issue with their second.
“As for interlocutory review, our precedent recognizes that resolving certain legal issues before trial is necessary to safeguard important constitutional interests—here, Executive Branch independence on matters that Article II assigns to the President’s discretion,” she explained.
Barrett goes on to argue that the Court should have weighed in on whether or not former presidents can be prosecuted “for any official conduct” instead of leaving it up to the lower courts.
“Though I agree that a President cannot be held criminally liable for conduct within his ‘conclusive and preclusive’ authority and closely related acts, the Constitution does not vest every exercise of executive power in the President’s sole discretion,” Barrett said.
“Congress has concurrent authority over many Government functions, and it may sometimes use that authority to regulate the President’s official conduct, including by criminal statute,” she argued. “Article II poses no barrier to prosecution in such cases.”
“The Constitution does not insulate Presidents from criminal liability for official acts. But any statute regulating the exercise of executive power is subject to a constitutional challenge. A criminal statute is no exception,” Barrett concluded. “Thus, a President facing prosecution may challenge the constitutionality of a criminal statute as applied to official acts alleged in the indictment. If that challenge fails, however, he must stand trial.”
Justice Sonia Sotomayor’s Dissenting Opinion
The dissenting opinion represents a stark departure from the majority, taking direct issue with their decision to allow for any degree of presidential immunity from criminal prosecution.
“Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency,” the dissenting Justices state. “It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.”
“The Court now confronts a question it has never had to answer in the Nation’s history: Whether a former President enjoys immunity from federal criminal prosecution,” they argued. “The majority thinks he should, and so it invents an atextual, ahistorical, and unjustifiable immunity that puts the President above the law.”
“The main takeaway of today’s decision is that all of a President’s official acts, defined without regard to motive or intent, are entitled to immunity that is ‘at least…presumptive,’ and quite possibly ‘absolute,'” the dissenting Justices said.
“Whenever the President wields the enormous power of his office, the majority says, the criminal law (at least presumptively) cannot touch him. This official-acts immunity has ‘no firm grounding in constitutional text, history, or precedent,'” they argued. “Indeed, those ‘standard grounds for constitutional decision making,’ all point in the opposite direction. No matter how you look at it, the majority’s official-acts immunity is utterly indefensible.”
“The majority’s single-minded fixation on the President’s need for boldness and dispatch ignores the countervailing need for accountability and restraint,” the Justices state. “Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law.”
“Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop,” the dissenting Justices conclude.
Justice Ketanji Brown Jackson’s Dissenting Opinion
Jackson notes in the opening paragraph of her dissenting opinion that she “agree[s] with every word of [Sotomayor’s] powerful dissent” and writes separately to explain “the theoretical nuts and bolts of what, exactly, the majority has done today to alter the paradigm of accountability for Presidents of the United States.”
“Departing from the traditional model of individual accountability, the majority has concocted something entirely different: a Presidential accountability model that creates immunity—an exemption from criminal law—applicable only to the most powerful official in our Government,” she wrote.
Jackson goes on to suggest that “by changing the accountability paradigm in this fashion, the Court has unilaterally altered the balance of power between the three coordinate branches of our Government as it relates to the Rule of Law, aggrandizing power in the Judiciary and the Executive, to the detriment of Congress.”
She also contends that “the majority’s new Presidential accountability model undermines the constraints of the law as a deterrent for future Presidents who might otherwise abuse their power, to the detriment of us all.”
Jackson goes on to argue that through the majority’s decision to allow for presidential immunity, “the seeds of absolute power for Presidents have been planted.”
“The majority of my colleagues seems to have put their trust in our Court’s ability to prevent Presidents from becoming Kings through case-by-case application of the indeterminate standards of their new Presidential accountability paradigm,” Jackson concluded. “I fear that they are wrong. But, for all our sakes, I hope that they are right.”
Click Here to Read the Supreme Court’s Full Opinion
This case will now be sent back down to the lower courts where they will be tasked with classifying Trump’s various actions surrounding the 2020 election and the events that transpired on January 6, 2021 as either official or unofficial in order to determine which ones qualify for immunity under the framework established by the Supreme Court Monday.
Clarence Thomas’s Written Opinion on this case is proof why the supreme court was create by our founding fathers. Everyone should view it and realize the constitutional logic behind it. To rule against it, I would consider you an enemy of the state
a constitution, of written rules and rights, protects individual liberty, where a democracy, by rule of popular vote, leads to tyranny. Thus we have a republic and not a democracy.