On the docket: Trump secures partial immunity
The US supreme court’s decision Monday that Donald Trump has some immunity from criminal prosecution marked a win for the ex-president. While Trump’s not off the hook in his Washington DC federal election subversion case, he is even less likely to face trial in these proceedings before the election.
The justices’ 6-3 decision, which fell squarely along ideological lines, will wind up delaying this trial, playing into Trump’s legal strategy of near-perpetual postponements. This decision, written by Chief Justice John Roberts, guts one of the allegations and challenges the legal viability of the others, raising the stakes still more.
Let’s look at the nuts and bolts of Special Counsel Jack Smith’s election subversion case against Trump to understand what exactly is going on.
Smith claimed that Trump convened bogus groups of electors and pursued “sham election investigations” through the US justice department to block the certification of Joe Biden’s 2020 win.
Trump’s goal was to remain in the Oval Office despite his loss, Smith said. This indictment charges Trump with one count of conspiracy to defraud the United States, one count of conspiracy to obstruct an official proceeding, one obstruction of and attempt to obstruct an official proceeding, and one count of conspiracy against rights.
The indictment claimed that Trump met with his acting attorney general Jeffrey Rosen and other top justice department (DoJ) and White House officials to discuss alleged election fraud. The indictment contends that when Rosen refused to comply with his demands, Trump repeatedly threatened to fire him.
The supreme court determined today that the allegations against Trump involving Rosen constituted an official act. In the decision, the court maintained that Trump has “absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority”.
The findings relating to other allegations against Trump don’t derail the case per se, but they’re going to be litigated in a way that delays proceedings. The court determined that Trump “is entitled to at least presumptive immunity from prosecution for all his official acts” and that “there is no immunity for unofficial acts.”
This deals a huge blow to count one, conspiracy to defraud the United States, as this involves Trump’s alleged pressure on the DoJ. The opinion found that despite Trump’s efforts to rope in the DoJ in his alleged election subversion, doing so still fell under his powers and protections as president.
“Because the president cannot be prosecuted for conduct within his exclusive constitutional authority, Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with justice department officials,” the opinion said.
The question as to whether the other three counts can go forward will probably remain unanswered for the foreseeable future.
Trump, per the indictment, organized false slates of electors to trick his vice-president, Mike Pence, into thinking the election results were uncertain. Pence ultimately didn’t take the bait, so Trump tried to block Biden’s certification by taking advantage of the January 6 insurrection to prop up phoney claims of election fraud, hoping to sway Congress members into delaying Biden’s certification, the indictment said.
The supreme court decision found that “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”.
The justices identified that their “question then becomes whether that presumption of immunity is rebutted under the circumstances”. They said it’s prosecutors’ “burden to rebut the presumption of immunity” and ultimately didn’t decide on this issue.
Because a lower court has to decide this issue, it will create another delay. And if the lower court rules against Trump, which seems likely to occur, he is all but guaranteed to appeal and, if he doesn’t get the answers he wants, take this issue back to the supreme court.
The supreme court also remanded the question of whether Trump’s interactions with non-executive branch parties – including private citizens – over the election constituted official acts. As for Trump’s comments relating to January 6, which the indictment maintains are part of his alleged subversion conspiracy, the justices also left this up to the trial court.
The president possesses “extraordinary power to speak to his fellow citizens and on their behalf … So most of a president’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities”, the justices said.
“There may, however, be contexts in which the president speaks in an unofficial capacity–perhaps as a candidate for office or party leader. To the extent that may be the case, objective analysis of ‘content, form and context’ will necessarily inform the inquiry.”
Even before this decision, the earliest Trump’s election subversion case could have gone to trial was 20 September. So taking into account the issues remanded to the trial court, it’s looking like proceedings will plod along at an even slower clip.
This benefits Trump, of course; his lawyers’ strategy has always been to push for postponement until after the election. If Trump bests Biden, then he can appoint a favorable attorney general who could abandon the federal charges against him.
Sidebar: A scathing dissent
In her dissent, liberal justice Sonia Sotomayor argued that the decision basically protects the president against any legal accountability in criminal cases.
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.
“Orders the navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold on to power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.
“Let the president violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.”
What’s next
Trump is expected to be sentenced on 11 July in his New York hush-money case. He also faces state charges in Georgia involving election interference, and a federal criminal case in Florida over his retention of classified documents after leaving the White House.
The likelihood of either case proceeding to trial before the election is virtually nil. Georgia’s court of appeals put a hold on Trump’s state election subversion proceedings in June. The appeals panel did so while weighing whether to disqualify Fulton county prosecutor Fani Willis from this case following revelations that she had a romantic relationship with the special prosecutor she appointed.
In south Florida, US judge Aileen Cannon, a Trump appointee, officially abandoned the 20 May trial date without rescheduling the start of proceedings. Cannon has granted extensive leeway to Trump’s lawyers, going along with nearly every extension request and considering his wildest defence theories.
A brief programming note: I’ll be writing the Trump on Trial newsletter for the foreseeable future. Before this, I covered Trump’s New York City criminal trial, and lots of the civil litigation against him, as part of my work covering courts and crime for the Guardian.
