What happens now because of the immunity ruling

The Supreme Court’s conservatives give Donald Trump what he asked for, and more

Today — 67 days after oral argument and 201 days since his federal election interference trial was stayed — the Supreme Court gave Donald Trump what he was looking for, and more. 

There is no mention of presidential immunity from criminal prosecution in the Constitution’s text. For nearly 235 years, the courts, the Justice Department, the American public, and former presidents themselves have assumed that presidents who violate the law can be prosecuted for doing so after they leave office. And yet our current Supreme Court decided none of that mattered. 

In Trump v. United States, the Court ruled 6-3 (on ideological lines) that former presidents have absolute immunity from prosecution for crimes committed using their “core constitutional powers,” have “presumptive” immunity for other crimes if they involved “official acts,” but lack immunity for any crimes committed as “private” or “unofficial acts.”

A ruling with grim implications

Today’s ruling means that Trump gets a pass on trying to use the Justice Department to pressure states into adopting his slates of fraudulent electors (telling the Justice Department what to do is a “core executive power,” you see), and might get a pass on pressuring his vice president to overturn the election results (the Court said this was an official act but might not be entitled to immunity if “the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’”).  And, as a practical matter, it also means he may very well get a pass on the whole prosecution. 

This is because the Court sent Trump’s case back down to the trial court to litigate anew the questions of what allegations in the government’s indictment might involve “official acts,” whether the presumption of immunity that attaches to that conduct can be rebutted, and what allegations constitute purely private conduct undeserving of protection from criminal liability. 

These are fact intensive questions that also will generate a host of difficult new legal questions, and with those, an additional round of appeals up through the circuit court and back to the Supreme Court. And while those appeals run their course, Trump’s trial will continue to be delayed, possibly beyond the Court’s next term. (And that is if he loses the 2024 election. If he wins, he’ll order the case dropped.)

It’s been clear from day one that Trump’s defense strategy isn’t to contest the evidence of his wrongdoing on the merits. It’s to run out the clock until he can retake the presidency and then use the powers of the office to terminate his prosecution. 

This is a stunningly brazen attempt to avoid accountability for actions that struck at the heart of our democratic system of government and that took place in full public view. 

And the Supreme Court has all too eagerly played the role of accomplice in Trump’s strategy of delay. Recall that the Court refused to hear Trump’s appeal directly from the trial court, requiring the circuit court to weigh in first; then scheduled oral argument for the last argument day of the Term; and then waited more than two months and until the very last day of the Term to issue its opinion. As we wrote before, the Court’s unusual delay flouts its own law on the public’s interest in the speedy resolution of criminal trials.

A “mini trial” is the best hope for accountability

The best hope for a measure of accountability now is a robust evidentiary hearing — a sort of “mini trial” — in the district court before Election Day. 

We, and others, have explained why American voters are entitled to hear the evidence that Trump tried to overthrow the 2020 election — and hear it tested and critiqued by his defense team — before they are asked to cast a ballot for him in November. By ruling the way it did today, the Supreme Court guaranteed that a full presentation of the evidence in a trial won’t happen before then. But by remanding the case to the trial court to determine what conduct is and is not immunized, the Court created a window for the government’s allegations to be more fully developed and supported with evidence on the public record in the trial court. And that at least could provide the voting public with some of the information it needs to make an informed choice.

The District Court and the Special Counsel should pay no heed to complaints from Trump and his allies that resuming the proceedings a few weeks from the party nominating conventions and the start of early voting constitutes “election interference.” As we explained in our guide on Prosecuting Political Leaders During an Election, there is no constitutional provision, law, or Justice Department policy that prohibits indicted criminal cases from being tried close in time to an election. The same analysis applies to pre-trial proceedings.  

The stakes just got higher

And finally, perhaps the most important takeaway is this: the public should pay careful attention to this decision as it considers the stakes of the upcoming election. 

The next president will take the oath of office with this ruling as a backdrop — one that places the already-vast powers of the presidency at even further remove from any check other than voters and that enhances the likelihood that future autocratic-minded presidents will have even less respect for election results than Trump exhibited in 2020. That is not what our founders envisioned when they pledged their lives, their fortunes, and their sacred honor to overthrowing a king. 

Something to contemplate this Fourth of July.