When the special counsel Robert Mueller testified to Congress in 2019 about the Russia investigation, he said he believed Donald Trump could be charged with obstructing his investigation after he left office. The US supreme court has effectively ruled this week that would no longer be true.
The testimony before the House judiciary committee was to do with whether Trump had committed obstruction of justice in trying to fire Mueller to end the investigation into his contacts with Russia before the 2016 election.
The supreme court ruling on Monday held that presidents are absolutely immune from criminal prosecution for what it described as “core executive functions” – constitutionally vested powers that, most notably, included discussions between a president and justice department officials.
A special counsel such as Mueller is widely seen to be part of the justice department. As a result, applying the supreme court ruling, it would have been within Trump’s prerogative to fire Mueller and then escape prosecution because he was absolutely immune.
The supreme court’s decision on immunity is notable not just for the immediate ramifications for Trump’s criminal case in Washington, on charges that he sought to subvert the results of the 2020 election, which is now set to have large parts excised.
It also paves the way for Trump to be more unencumbered in a potential second term: Trump and his advisers would be free to capitalize on the expansion of presidential power to foreclose accountability for what might otherwise have been considered criminal acts.
Chief Justice John Roberts, writing for the conservative majority, rejected the notion that presidents were made tantamount to monarchs, adding that presidents require special status because they might otherwise be chilled in decision-making if they feared prosecution after office.
“The president is a branch of government, and the constitution vests in him sweeping powers and duties,” Roberts wrote. “Accounting for that reality … does not place him above the law; it preserves the basic structure of the constitution from which that law derives.”
But the supreme court ruling nonetheless solidifies an increase in executive authority that will be beyond the reach of Congress or the courts.
The framework of criminal accountability for presidents, as laid out by the ruling, has three categories: core presidential functions that carry absolute immunity, official acts of the presidency that carry presumptive immunity, and unofficial acts that carry no immunity.
At the absolute-immunity end of the spectrum, the opinion makes clear that presidents are theoretically free to commit crimes that fall within their core constitutional duties, such as issuing pardons or vetoing legislation.
The opinion said Congress cannot intrude on how a president exercises those powers, and courts cannot question a president’s motivation in exercising those duties. In a hypothetical second term, Trump could veto legislation or use the justice department as a conduit for a bribe and make it all but impossible to indict.
How prosecutors would be foreclosed from prosecuting a bribery case in practice might look something like how the obstruction case against former Democratic congressman Henry Helstoski fell apart in the face of a speech or debate clause protection.
In that case, Helstoski was accused of accepting a bribe to introduce legislation and obstructed the investigation. But it all unraveled for prosecutors after the supreme court upheld an appeals court decision that any acts in furtherance of legislative activity could not be used as evidence.
Roberts wrote that the majority also considered discussions with the justice department to be part of core presidential functions.
The reference was notable because since Watergate, there has been a norm of the department having prosecutorial independence from the White House. Trump already eroded that norm during his administration, and has vowed to bring the department fully under presidential control in a second administration to seek retribution against his perceived enemies.
While not enjoying automatic or absolute immunity, the second category of “official” acts – acts that presidents undertake that are not core constitutional powers and therefore share overlapping authority with Congress – also have presumptive immunity.
The opinion said the shield of presumptive immunity could be overcome if prosecutors presented evidence that “applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the executive branch’”.
But in her dissent, Justice Sonya Sotomayor castigated that purported distinction as unworkable in practice, writing that it would be effectively impossible for prosecutors to show there was no danger of such an intrusion.
“Moving forward, however, all former presidents will be cloaked in such immunity,” Sotomayor wrote. “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.”
