The court’s six Republicans handed down a decision Monday that gives Donald Trump such broad immunity from prosecution that there is unlikely to be any legal check on his conduct once he returns to the White House. Three Democrats on the court dissented.
Trump v. United States An amazing opinion. It holds that presidents have broad immunity from criminal prosecution — essentially, a license to commit crimes — as long as they use the official powers of their office to do so.
Broadly speaking, Chief Justice John Roberts’s majority opinion reached three conclusions. The first is that when the President takes an action under the authority granted to him by the Constitution, his authority is “prescriptive and restrictive” and thus cannot be prosecuted. So, for example, a president cannot be prosecuted for pardoning someone, because the Constitution clearly gives the chief executive “the power to sanction and pardon crimes against the United States.”
A question that has loomed over the case for months is whether presidential immunity is so broad that the president can order the military to kill a political rival. While the case was pending in a lower court, a judge asked whether Trump could be prosecuted Ordered SEAL Team 6 to “kill a political rival”. And Trump’s lawyer replied that he couldn’t do that unless Trump had previously been successfully impeached and convicted of doing so.
Roberts’ opinion TrumpHowever, Trump’s lawyer appears to be further along. The Constitution, after all, says that the president “shall be the head of the army and navy of the United States.” So, if the president’s authority is “definite and definite” when presidents exercise their constitutionally granted powers, the court seems to be saying that yes, Trump can order the military to kill one of his political opponents. And nothing can be done to him.
Justice Ketanji Brown as Jackson Write a dissenting opinion“Presidents from today to tomorrow will be free to exercise the commander-in-chief powers, the foreign affairs powers, and all the vast law-enforcement powers enshrined in Article II however they please — including in ways that Congress has deemed criminal and infringing on the rights and liberties of Americans.” can have potentially fatal consequences.”
Roberts’ second conclusion is that presidents also enjoy “at least a presumptive immunity from criminal prosecution for presidential acts outside the scope of his official duties.” Thus, if a president’s actions even touch his official authority (the “outer perimeter” of that authority), the president enjoys a strong presumption of immunity from prosecution.
This second form of immunity applies when the president exercises authority not specifically mentioned in the Constitution, and is quite broad—perhaps extending to mere conversations between the president and his subordinates.
The Court also held that this second form of immunity was exceptionally strong. As Roberts writes, “The President must therefore be immune from prosecution for an official act unless the government can show that a criminal sanction could be applied to that act. Any ‘danger of encroachment on the authority and functions of the executive branch.’“
Much of Roberts’ opinion, moreover, details how broad this immunity would be in practice. Roberts claims, for example, that Trump is immune from prosecution for conversations between himself and senior Justice Department officials in which he urged them to pressure states to “replace their legitimate voters” with fraudulent members of the Electoral College who would vote. Install Trump for a second term.
Roberts wrote that “the executive branch has the ‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute,” and thus Trump’s conversations with Justice Department officials fall within his “specified and specific authority.” Following this logic, Trump could not have been charged with a crime if he had ordered the Justice Department to arrest every Democrat in elected office.
Elsewhere in his opinion, however, Roberts suggested that any transition between Trump and one of his advisers or subordinates could not be the basis for a lawsuit. To explain why Trump’s efforts to pressure Vice President Mike Pence to “fraudulently change the outcome of the election” cannot be prosecuted, for example, Roberts points to the fact that the vice president often serves as “one of the president’s closest advisers.”
Finally, Roberts acknowledged that the president could be prosecuted for “unofficial” acts. So, for example, if Trump had personally attempted to shoot and kill then-presidential candidate Joe Biden in the lead-up to the 2020 election, without ordering a subordinate to do so, Trump could likely be prosecuted for murder.
But even this caveat is not too strong for Roberts’ decision on widespread immunity. Roberts wrote that “in distinguishing official from informal conduct, courts cannot inquire into the President’s intent.” And Roberts even limits the power of prosecutors to go after a president who accepts a bribe in exchange for doing an official act, such as pardoning a criminal who pays the president. In Roberts’ words, a prosecutor “may not admit testimony or personal records investigating the official acts of the President or his advisers themselves.”
This means that, while the president can be prosecuted for an “ceremonial” act, prosecutors cannot prove that he committed the crime using evidence derived from the president’s “official” actions.
The practical implications of this ruling are staggering. As Justice Sonia Sotomayor wrote in a dissenting opinion, “Imagine a president saying in a public address that he wants to prevent a political opponent from passing legislation he opposes, whatever it takes to do so,” it follows from Roberts’ opinion that the latter An assassination charge “may not include any allegation of the President’s public admission of premeditated intent to support a motion to assassinate the President”.
Monday’s decision, in other words, ensures that if Trump returns to power, he will do so with little legal check. Under the decision of the Republican Justices Trump, a future president could almost certainly order the assassination of his rivals. He can exercise presidential authority to commit countless crimes. And he can order a subordinate to do virtually anything.
And nothing can be done to him.
