WASHINGTON – The Supreme Court’s broad finding of immunity for former President Donald Trump’s official acts has stunned legal experts. This decision could delay his federal trial by a year as courts work to determine which charges can stand amid allegations that he tried to steal the 2020 election.
Chief Justice John Roberts, writing for the 6-3 ideological majority, stated that lower courts must discern which of Trump’s actions were conducted in his official capacity as president, and which were unofficial and thus open to prosecution.
“We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office,” Roberts wrote. “As for a president’s unofficial acts, there is no immunity.”
Trump celebrated the decision as a “big win for our constitution and democracy” in an all-caps post on Truth Social.
Broad Implications and a Delayed Trial
The ruling instructs U.S. District Judge Tanya Chutkan to examine the indictment and determine whether any charges pertain to official acts for which Trump is immune. One justice suggested reviewing the legitimacy of the prosecutor’s appointment, and a footnote invited scrutiny of an obstruction charge the court had narrowed in a decision on Friday.
Justice Department special counsel Jack Smith’s team of prosecutors contends the charges are based on private actions aimed at overturning election results. However, Trump argues that his complaints about alleged fraud were part of his official duties to ensure election integrity.
Michael Waldman, a constitutional law expert and CEO of the Brennan Center for Justice, predicts that judicial review of the charges could take a year. David Becker, a former senior trial attorney in the voting section of the Justice Department’s civil rights division, describes the decision as “deeply disturbing” and “really striking” for the protection it affords presidents.
“The way I read this opinion is it could be a road map for (presidents) seeking to stay in power,” said Becker, executive director of the Center for Election Innovation and Research. “It could put into question whether or not future peaceful transfers of power occur.”
Lengthy Hearings Expected
The indictment against Trump includes two obstruction counts and two conspiracy counts, broadly alleging that he sought to overturn the results of the 2020 election. Specific allegations include:
- Conspiring to obstruct Congress’s certification of President Joe Biden’s election victory on Jan. 6, 2021.
- Attempting to use the Justice Department’s power to convince states to replace legitimate presidential electors with fraudulent ones.
- Meeting with then-acting Attorney General Jeffrey Rosen to discuss investigating purported election fraud and threatening to replace Rosen.
- Attempting to enlist Vice President Mike Pence to accept fraudulent electoral ballots during Congress’s certification of the vote.
Roberts noted that determining how to apply immunity in Trump’s case “raises multiple unprecedented and momentous questions about the power of the President.”
While Trump’s discussions with his acting attorney general are deemed official and exempt from prosecution, his interactions with Vice President Pence and others present more complex issues, which the lower courts must address. However, Roberts cautioned that courts “may not inquire into the President’s motives.”
Trump’s attempt to pressure Pence to interfere with Congress’s electoral count “is at least presumptively immune from prosecution,” Roberts wrote. “It is ultimately the Government’s burden to rebut the presumption of immunity.”
Justice Clarence Thomas, agreeing with Roberts, questioned the legitimacy of Jack Smith as the special counsel prosecuting the case. Thomas emphasized that if the prosecution is to proceed, it must be led by someone authorized by the American people.
No Trump Trial Before Election: Legal Experts
Legal experts agree that hearings to determine which charges against Trump can stand will likely extend any trial beyond the Nov. 5 election.
“The Supreme Court has put out a fact-intensive test on the boundaries of the president’s immunity − with a huge thumb on the scale favoring the president’s immunity − in a way that will surely push this case past the election,” said Rick Hasen, a law professor at UCLA.
Georgetown University law professor Erica Hashimoto noted that it would take time to interpret the opinion and its application. “No chance of a pre-election trial,” she concluded.
Becker suggested that even if a lower court rules that Trump’s request for Georgia Secretary of State Brad Raffensperger to “find” enough votes to win the election is not an official act, such a decision could be overturned on appeal to the Supreme Court.
“The degree to which that immunity falls on the president is really striking for me,” Becker said.
Waldman warned that under the court’s logic, former President Richard Nixon paying hush money to Watergate burglars or offering clemency to a conspirator could be considered official acts. He estimated that it could take another year to resolve what charges Trump can face.
“The facts are easy: Trump is not immune from conspiring to overthrow the Constitution’s peaceful transfer of power, even if he worked with other government officials to do it,” Waldman asserted.