Today, the Supreme Court released its final decisions of the 2023-2024 Term, including the long-awaited decision in Trump v. U.S., in which the Court held 6-3 that a former President enjoys immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office. Other decisions released today were Moody v. NetChoice, LLC, in which the Court remanded two blockbuster social media moderation cases for further review, and Corner Post, Inc. v. Board of Governors of the Federal Reserve System, which in conjunction with last week’s Loper Bright decision, further erodes the administrative state.
What You Need to Know
- Question Before the Court: 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?
- What Happened at the Oral Argument: In a preview of how the majority opinion would ultimately deal with the case, the Court spent precious little time on the actual conduct of the former president central to this case, with Justice Kavanaugh noting to the government’s lawyer, “I’m not focused on the here and now of this case, I’m very concerned about the future.” This posture led to a series of hypotheticals, as several of the justices attempted to find the boundaries of what might constitute an “official act.” In response to one such hypothetical, Trump’s advocate made the assertion that an ordered assassination of a political rival might be considered an official act depending on the circumstances involved. At another point, he asserted that the president calling for a coup to remain in power “may well be an official act.”
- What Did the Court Decide: In a 6-3 decision split along ideological lines, the Court remanded the case back to the D.C. District Court for further proceedings to determine which of the charges brought against Trump are “official acts.” Writing for the majority, Chief Justice Roberts described the contours of presidential immunity under which the lower courts should operate, finding that a President “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.” The majority went so far as to hold that to preserve a President’s ability to take “bold and unhesitating action” while in office, a President’s motives cannot be questioned in determining whether an action should be categorized as “official” and that evidence of an official act that is relevant to a prosecution of unofficial acts cannot be introduced and considered by a jury. The end result, as Justice Sotomayor points out in the principal dissent, is to “completely insulate Presidents from criminal liability” such that “the person charged with ‘taking Care that the Laws be faithfully executed’ can break them with impunity.” Justice Sotomayor examined the text of the Constitution, as well as the “history and tradition” that the Roberts Court majority so often purports to adhere to , finding no support for the new immunity protections and concluding that the majority “invents an atextual, ahistorical, and unjustifiable immunity that puts the President above the law.” Justice Jackson, who joined the principal dissent in full, wrote separately to further expound upon what today’s decision means for the project of accountability, drawing from criminal law principles.
- What to Make of the Result: The Court’s decision in this case is nothing short of terrifying. During oral argument, several justices insisted they were uninterested in the underlying facts of this case but what may occur in the future. Yet, in the majority opinion, such worries for the future are swatted away condescendingly, with concerns raised by the dissent characterized as “fear mongering on the basis of extreme hypotheticals about a future where the President ‘feels empowered to violate federal criminal law.’” But as Justice Sotomayor’s dissent points out, this opinion now lies about like a loaded weapon at a time when authoritarianism is on the rise at home and abroad. In a statement released earlier today, ACS said: “Analysis of the Court’s decision should also put Trump v. United States in the context of recent history to appreciate the extent to which the Court is fundamentally restructuring our government and society to suit its ideological preferences. In decisions like Trump, Loper Bright, Corner Post, Biden v. Nebraska, and SEC v. Jarkesy, the Court has asserted that while the President can break the law with a type of immunity typically only enjoyed by kings and autocrats, the regulations his or her agencies promulgate can be overridden by an all-powerful Court who simply disagrees with the policies advanced, and Congress has little say on either account. This is not what the Constitution demands.”