Published On 2 Jul 2024
Dissenting Justice Sotomayor warns of ‘nightmare’ scenarios after Trump ruling that grants presidential, presumptive immunity.
Trump has immunity for official acts, US Supreme Court rules
On Monday, the Supreme Court of the United States (SCOTUS) ruled that Donald Trump is immune from prosecution for acts he committed within his constitutional powers as president.
The ruling applies to anyone who holds the position of US president. However, a president can be prosecuted for acts committed in a personal capacity.
While questions of presidential immunity have arisen before, such as during Richard Nixon’s Watergate scandal and Bill Clinton’s sexual assault lawsuit, this is the first time a former US president has been indicted on criminal charges.
The latest ruling further delays the Washington criminal case against Trump on charges that he was involved in attempting to overturn his 2020 presidential election loss and inciting the US Capitol riots on January 6, 2021. The case had been referred to the Supreme Court to determine the issue of immunity. It will now return to the lower court.
This is the first time the SCOTUS has formally ruled that former presidents may be protected from criminal charges.
Described by Trump as a “BIG WIN” on Truth Social, a social media platform owned by the Republican leader, but as a “dangerous precedent” by President Joe Biden, here is more about the historic 6-3 SCOTUS ruling on immunity:
Six Supreme Court justices – all appointed by Republican presidents – of nine agreed that if the president takes any action within the powers granted to him through the constitution, he cannot be prosecuted.
The US Constitution grants the president powers, including the ability to issue pardons, veto or sign bills, nominate high officials including cabinet members and Supreme Court justices, and direct the military after a congressional declaration of war on a foreign nation.
The verdict additionally grants presidents presumptive immunity “from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility”, meaning a president is presumed to enjoy immunity from prosecution if his action pertains even just a small amount to his official status.
Furthermore, the court ruled that if a president is prosecuted for an act carried out in a personal capacity, the prosecution cannot refer to the president’s official actions in evidence.
Three justices – Sonia Sotomayor, Ketanji Brown Jackson and Elena Kagan – disagreed with the SCOTUS opinion, issuing a 29-page dissent.
Led by Sotomayor, the dissent said, “With fear for our democracy, I dissent.”
The immunity verdict does not technically place Trump above the law, because he (and any former president) can still be prosecuted for unofficial acts not pertaining to his presidential capacity.
However, critics argue that, in practice, it could grant a former president complete immunity.
The SCOTUS opinion grants presumptive immunity, making it difficult to discern between acts committed in a personal or presidential capacity.
Many critics say it will be too difficult to differentiate actions by a president in their “personal” capacity from those in their “official” capacity.
“Under this Court’s opinion, the only thing that will stop a president from abusing their power is their own sense of restraint and people in the executive branch who may not follow their orders,” Chris Edelson, an assistant professor of government at American University, told Al Jazeera.
“We face the imminent prospect that a would-be dictator could take office if Trump wins the election this fall.”
Likely, Trump cannot be prosecuted over allegations that he pressured Vice President Mike Pence to reject certification of Biden’s win on January 6, 2021. This allegation forms part of the Washington case against Trump.
Moreover, he cannot be prosecuted for seeking to pressure the Department of Justice to investigate unfounded claims of election fraud, which also formed part of the case.
Trump’s election subversion case goes back to District Judge Tanya Chutkan of the lower court in Washington, DC to determine which acts Trump should be prosecuted for.
Contrary to Trump’s wishes, SCOTUS did not dismiss his indictment that alleges he illegally schemed to cling to power after losing the election. The indictment was filed in August 2023 by Special Counsel Jack Smith. It accuses Trump of four felonies, some punishable with up to 20 years in prison.
Besides granting Trump presumptive immunity for pressuring Pence, the conservative SCOTUS justices also truncated the allegation that Trump tried to use the investigative power of the Department of Justice to overturn election results.
Judge Chutkan now needs to analyse and determine whether other actions cited in the indictment fall under official conduct for which Trump would be immune from prosecution.
Trump’s communications to his supporters which the case alleges incited the January 6, 2021 Capitol riots will also be analysed to determine whether they fall under official conduct. This includes his posts on X and a speech he made.
It is currently uncertain what far-reaching consequences the SCOTUS opinion will have for the lower courts in the longer term.
The opinion issued by the three dissenting justices lists “nightmare” scenarios in which presidents could misuse immunity, such as organising a military coup to hold on to power or ordering the assassination of a political rival.
“In every use of official power, the President is now a king above the law,” Justice Sotomayor wrote in her part of the dissenting opinion.
With the ruling, Trump could achieve his legal strategy – delay the case proceedings until the election is over. A trial before the election is now highly unlikely.
If Trump wins the election, he could potentially order a pardon for himself or seek the dismissal of the case and the other cases against him by appointing an attorney general who is sympathetic to him.
Trump’s legal team has already applied for his conviction in a New York court of 34 felony counts of falsifying business records relating to a hush money payment to adult film star Stormy Daniels to be overturned. The defence team has also requested that his sentencing hearing, originally scheduled for July 11, be delayed.
Trump’s lawyers say some of the evidence used in this case – such as those relating to public statements made by Trump – is now excluded by the Supreme Court’s immunity ruling and, therefore, should not have been used at trial.
Whether Trump’s legal arguments are upheld has yet to be seen.
