SCOTUS Presidential Immunity Ruling Raises Questions About Crimes

The landmark Supreme Court decision handed down this week didn’t just grant former President Donald Trump absolute immunity from some of the actions he took while in the White House, it also opened up new questions about what future actions presidents could take and not be worried about criminal prosecution.

The 6-3 decision, which was made along political ideological lines, broke legal ground not broken before. For the first time, the high court ruled that presidents enjoy “absolute immunity” for all official acts they take that are core to their areas of responsibility.

The decision also said that presidents have presumptive immunity for multiple other official acts they might take, too.

The majority decision was written by Chief Justice John Roberts. In it, he said that the onus lies with lower courts to determine where, exactly, lines might be drawn.

In the decision’s chief dissent, liberal Justice Sonia Sotomayor wrote that it could be possible that assassinating a political rival might fall within the boundaries of a core presidential action.

As she wrote:

“When he [the president] 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 onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”

Roberts, though, dismissed the hypothetical that Sotomayor laid out, saying they’re just “a tone of chilling doom that is wholly disproportionate to what the Court actually does today.”

He continued to write in response:

“Conspicuously absent is mention of the fact that since the founding, no President has ever faced criminal charges — let alone for his conduct in office. And accordingly no court has ever been faced with the question of a President’s immunity from prosecution. All that our Nation’s practice establishes on the subject is silence.”

The theory for presidential immunity lies in the country’s long-established separation of powers doctrine. Roberts reasoned in his opinion that the powers that the president holds would be subverted should Congress be able to criminalize some of the responsibilities of the executive branch.

The trick, he added, really comes from how courts will draw the lines based on certain acts.

As Roberts wrote:

“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. 

“At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity.”

Some of these “core” powers, according to the majority, include firing officers in the executive branch or granting pardons.

In relation to Trump’s specific criminal cases, Roberts wrote that communicating with the Department of Justice is core to presidential duty, so the former president has absolutely immunity there — which is one of the charges he faces in his election subversion case.

The other three charges he’s facing could also be subject to immunity, but that would be up to lower courts to decide.