“May have just legalized murder by one individual”: Experts alarmed at “stunning” SCOTUS ruling

Donald Trump is immune from criminal charges for official acts carried out within his “core constitutional powers” while in office but not from unofficial acts, the Supreme Court ruled Monday.

The highly anticipated decision comes nearly seven months after Trump first submitted the legal challenge in his federal election subversion case brought by special counsel Jack Smith, claiming he enjoyed absolute presidential immunity from prosecution of official acts connected to his alleged efforts to subvert the 2020 election results and remain in power.

The justices held that the former president is entitled to absolute immunity from criminal prosecution for actions taken “within his conclusive and preclusive constitutional authority” and receives “at least presumptive immunity from prosecution for all his official acts,” ruling in a 6-3 determination split along ideological lines. Chief Justice John Roberts delivered the majority opinion.

“Criminally prosecuting a President for official conduct undoubtedly poses a far greater threat of intrusion on the authority and functions of the Executive Branch than simply seeking evidence in his possession,” the decision reads, referencing the court’s rejection of a claim that a president could not be subpoenaed in United States v. Burr in 1895. “The danger is greater than what led the Court to recognize absolute Presidential immunity from civil damages liability—that the President would be chilled from taking the ‘bold and unhesitating action’ required of an independent Executive.”

“Although the President might be exposed to fewer criminal prosecutions than civil damages suits, the threat of trial, judgment, and imprisonment is a far greater deterrent and plainly more likely to distort Presidential decisionmaking than the potential payment of civil damages,” it continued. 

The court sent the case back to U.S. District Court Judge Tanya Chutkan, who’s overseeing the trial, to determine which of Trump’s charged actions, including interactions with ex-Vice President Mike Pence, state officials, certain private parties and comments to the American public, constitute either official or unofficial acts.

The justices “gave Trump virtually everything he asked for,” issuing a ruling that was “about as broad as it could be for presidential immunity” since it holds that “virtually everything a president does as president is ‘presumptively’ and ‘official act'” that requires the prosecution to “rebut that presumption,” argued Bennett Gershman, a law professor at Pace University and former New York prosecutor.

He pointed to the justices determining that courts may not “inquire into the president’s motives” and the implication that proof of Trump’s attempt to hold onto power through “fraudulent and corrupt actions” would not be allowed as another point of contention, calling the decision “a gift” to the former president “by delaying any trial until next year at the earliest, if at all.” 

“The court’s recital of the president’s authority was stunning in its breadth,” Gershman told Salon. “It made me wonder whether a president could claim absolute immunity for the ‘official act’ of ordering a Navy Seal team to assassinate a political rival; organizing a military coup to hold onto power; accepting a bribe in exchange for a pardon.”

David Schultz, a professor of legal studies and political science at Hamline University, told Salon that the high court’s decision was “not a surprise” to him in terms of what it held. Instead, he said he was more struck by the clean ideological split in the decision.

“Roberts did not get, I think, what he wanted: a 9-0 opinion,” Schultz said, adding: “Whatever the merits of his argument, the public reception of it is going to be that this was a win for Donald Trump, given to him by a Supreme Court that he significantly had a hand in crafting. That’s not going to be good for the public perceptions of the court.”

Trump sought to have the charges in his federal election interference case alleging he conspired to overturn the 2020 election and obstruct the peaceful transfer of power on Jan. 6, 2021, on the grounds of having absolute immunity from prosecution for acts conducted while in office.

Two lower courts roundly rejected the notion before the Supreme Court decided to take up the case, and the high court appeared skeptical of the Trump legal team’s assertion during oral arguments in late April. On Monday, the justices described Trump’s description of presidential immunity as far broader 

Though the decision finally resolves an issue that put his Washington, D.C., trial on hold indefinitely — in theory, now allowing the case to move forward — legal experts have previously told Salon that the court’s choice to delay the decision played right into the former president’s hand: making it less likely for the case to go to trial before this year’s election, which could result in the case being thrown out altogether should he win the presidency in November. 

Schultz said that the justices left open two possibilities for the district court to address deciding which alleged misdeeds were official or unofficial — doing so before any trial takes place or making these distinctions as part of trial. The former, he said, appeared to be where the nation’s highest court had landed.  

“The implications of that are significant because if it basically says that the court has to figure it out first — the prosecution has to convince the court first that these are actions that are not immune — that could very well take place before a trial has to occur and affect the indictments,” Schultz said, noting later that, given that the distinction between unofficial and office acts amounts to a “fact-based question,” the judge could proceed to trial.

Arguing that there is “no excuse for the delay in reaching this decision,” Norman Eisen, a CNN legal analyst and senior fellow at the Brookings Institute, called for Chutkan to “call the parties before her” and hold a “mini trial” — to be “scheduled imminently” — to categorize the remaining acts and “shed light” on the depth of Trump’s misconduct for the American public to digest ahead of the election.

“The decision today does set up a test that now needs to be adjudicated in a mini trial,” he said during a press call Monday afternoon, noting that the chief justice’s opinion “actually calls for fact-finding by Judge Chutkan.”

Eisen also emphasized the gravity of the dissenting opinion, proclaiming that the three dissenting justices — liberal Justices Sonia Sotomayor, Ketanji Brown-Jackson and Elena Kegan — will be “remembered as a clarion call that the Supreme Court took a terrible wrong turn.”

“When dissenting justices warned that the majority may have just legalized murder by one individual in our country, that warning is to be taken very seriously,” he said. “Nor are the consequences of the majority opinion able to be read in isolation. We can not ignore the trend towards authoritarianism.”


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Sotomayor, joined by Brown-Jackson and Kegan, authored a scathing dissenting opinion.

“Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. 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.”

“With fear for our democracy, I dissent,” she concluded.

In posts to Truth Social Monday, Trump, however, celebrated the Supreme Court’s decision — and took swings at President Joe Biden and the prosecutors heading his other legal battles, including his civil fraud trial and defamation case from writer E. Jean Carroll. 

“Today’s Historic Decision by the Supreme Court should end all of Crooked Joe Biden’s Witch Hunts against me, including the New York Hoaxes – The Manhattan SCAM cooked up by Soros backed D.A., Alvin Bragg, Racist New York Attorney General Tish James’ shameless ATTACK on the amazing business that I have built, and the FAKE Bergdorf’s ‘case,'” Trump wrote. “PROUD TO BE AN AMERICAN!”

Trump has repeatedly denied all wrongdoing and routinely characterized the cases against him as a political witch hunt.

The former president still faces federal charges in Florida brought by Smith alleging he illegally retained national security documents post-presidency and obstructed government efforts to retrieve them. He also faces charges in Georgia over an alleged conspiracy to subvert the election results in that state, though that trial has been postponed pending an appellate court decision on whether Fulton County prosecutor Fani Willis can remain on the case.

While Schultz said that Supreme Court’s decision Monday is unlikely to impact the Florida case in any way due to the alleged misconduct being acts Trump undertook after leaving office, the ruling could impact the Georgia case by requiring the court to determine whether “the actions that he used to try to pressure state officials in Georgia” are official or unofficial acts.

Gershman, however, argued that both cases are “imperiled by this decision,” asserting instead that Trump’s conviction of 34 felony counts in New York late last month would not be impacted by the Monday ruling.

But looking just at the legal outcomes of the Supreme Court’s decision is not enough, Eisen argued. He and Schultz agreed that the determination will have profound political consequences, with Schultz predicting it will be another hot-button issue of the 2024 presidential race.

“Much in the same way that the Dobbs opinion two years ago really affected the contour of the midterm elections, this opinion is — in addition to the fact that it affects Trump’s trial and, I think, given the fact that it’s going to be perceived as a highly partisan political opinion — also going to be now part of the talking points, at least for the Democrats, going into the 2024 election,” Schultz said. “At a time when they need, especially after the debate last week, to shift something away from Biden’s performance, it’s something that they’re going to hope that gives them momentum.”

As for the decision’s impact on the nation, Schultz said he finds what it suggests to be a lot more unclear.

“The court has really given a degree of immunity to core constitutional acts of the president. I think that does raise a lot of troubling questions,” he said, citing specifically the question at oral arguments in April of whether the president ordering the assassination of a political rival amounts to an official or unofficial act. “I don’t think the court addresses that question. It leaves open a lot of murky stuff that need not have been so unclear.”

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