What to know about presidential immunity after the Supreme Court ruling

02/07/2024

The Supreme Court ruled Monday that former president Donald Trump is immune from prosecution for official acts taken while in office, but not for private conduct, in a 6-3 ruling that split the justices along ideological lines.

Here’s what to know about the decision.

What is presidential immunity?

Broadly, it has referred to the legal theory that past and current presidents have some protections from legal accountability. In the context of Monday’s Supreme Court decision, it is the ruling that Trump and others are absolutely immune to prosecution for actions taken while exercising their “core constitutional powers,” and entitled to the presumption of immunity for their official acts. It does not provide a shield for private or unofficial acts.

Chief Justice John G. Roberts Jr. said presidential immunity is necessary to ensure an “energetic, independent executive” and to avoid an executive branch that “cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next.”

But the majority opinion said the government could overcome the presumption of immunity for a former president’s official acts if it can show that prosecuting the specific conduct does not intrude on “the authority and functions of the executive branch,” The Washington Post reported.

What did the Supreme Court define as “official” versus “unofficial” acts?

The Supreme Court ruled that a president’s official conduct may extend to all actions so long as they are “not manifestly or palpably beyond” his or her authority.

It specified that official conduct for which Trump is immune from prosecution includes his discussions with Justice Department officials in the wake of the 2020 presidential election, during which he sought to convince them to aggressively pursue unfounded claims of election fraud.

But while Trump’s attempts to pressure Vice President Mike Pence to change the election’s results may count as official conduct, for which he is “presumptively immune,” prosecutors can argue that a charge related to communications with the vice president regarding the certification of President Biden’s victory does not intrude on the executive branch’s functions, The Post reported.

Trump’s interactions with state officials and private citizens during his attempts to overturn the 2020 election results, meanwhile, “cannot be neatly categorized as falling within” official conduct, the Supreme Court’s majority opinion said. The court ordered the D.C. district court to “determine in the first instance … whether Trump’s conduct in this area qualifies as official or unofficial.”

Most of a president’s “public communications are likely to fall comfortably within the outer perimeter of his official responsibilities,” meaning they are covered by immunity, the justices also said.

What does the ruling on presidential immunity mean for Trump?

In the near term, the ruling is favorable to Trump in the D.C. election interference case he faces, where his claim for presidential immunity prompted Monday’s ruling.

That case in D.C.’s district court — in which Trump faces four charges related to the accusation he conspired to overturn the election on Jan. 6 — has been significantly impacted by the Supreme Court’s decision and will now be delayed as the judge determines which acts he took were “official,” and therefore immune from prosecution, and which were “unofficial” and able to be prosecuted. It is highly unlikely to take place before the November election.

Of the two other criminal cases against Trump, the ruling could also affect the state election-interference case against him in Georgia. It is less clear if it would impact the case he faces in Florida, over classified documents found at Mar-a-Lago after his presidential term. His lawyers have already sought to challenge his conviction over concealing hush money payments to an adult-film actress in New York, though those acts took place before he took office.

In a broader sense, critics of the Supreme Court ruling, including President Biden, have warned that Trump could be emboldened in a potential second term, knowing that he would have immunity for acts that might have previously left him open to prosecution.

What was the dissent to the ruling?

The ruling was split along ideological lines, with the court’s conservative majority — Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr., Amy Coney Barrett, Neil M. Gorsuch, and Brett M. Kavanaugh, the latter three being Trump appointees — finding in the former president’s favor, and liberal Justices Sonia Sotomayor, Ketanji Brown Jackson and Elena Kagan dissenting.

In a scathing dissent, Sotomayor listed actions she said the ruling would make protected, including a president staging a military coup; having a rival assassinated; or taking a bribe in exchange for a pardon. The “deeply wrong” ruling “reshapes the institution of the Presidency” and “makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law,” she wrote.

“The long-term consequences of today’s decision are stark,” she wrote, adding that: “In every use of official power, the President is now a king above the law.”