In a historic, consequential, and controversial decision on Monday, the Supreme Court granted substantial immunity from prosecution to former president Donald Trump on election subversion charges.
The decision almost certainly will delay his trial until after the November election, if it takes place at all. The vote was 6-to-3, with the court鈥檚 Republican appointees all in the majority, and the Democratic appointees in fierce dissent.
The decision, written by Chief Justice John Roberts, established a broad new immunity from prosecution, not just for Trump, but for past and future presidents, too. Presidents may not be prosecuted for exercising their 鈥渃ore鈥� constitutional powers, and even in situations where former presidents might be prosecuted after leaving office, they are entitled to at least presumptive immunity from prosecution for official actions they took as president.
Such immunity is needed, said the chief justice, in order to protect an 鈥渆nergetic,鈥� and 鈥渋ndependent executive,鈥� willing to take 鈥渂old鈥� actions and make unpopular decisions when needed. And while Roberts said that private actions by a former president are not protected from prosecution, his opinion seemed to inexorably intertwine private and public actions.
The court, however, did not itself resolve whether any of the election subversion charges against Trump could go forward; rather, the justices sent the case back to the trial court judge to determine whether any of the charges against Trump are sufficiently private to survive鈥攊n other words, not within his official purview as president. And it made it far more difficult to prosecute a former president by limiting the evidence a prosecutor could present.
In a brief statement to reporters on Monday, President Biden said that today鈥檚 Supreme Court decision undermines the rule of law and sets a 鈥渄angerous鈥� precedent.
鈥淭oday's decision almost certainly means that there are virtually no limits on what the president can do,鈥� Biden said. 鈥淭he power of the office will no longer be constrained by the law, even including the Supreme Court of the United States. The only limits will be self-imposed by the president alone.鈥�
Stuart Gerson, a Republican who served in high-level Justice Department positions, put the effect of Monday鈥檚 ruling this way: 鈥淚t is impossible that this case will be resolved, if ever, before the election.鈥�
In short, he said, Trump got what he wanted: delay
But the former president actually got quite a bit more. The court made clear that if he is re-elected, he will be free to simply order the Justice Department to , and that his pardon power is unlimited.
鈥淢ake no mistake,鈥� said Justice Sonia Sotomayor, in a passionate dissent from bench, 鈥渢he majority gives President Trump all he asks for and more. 鈥�.Whether described as presumptive or absolute, under the majority鈥檚 rule, a president鈥檚 use of any official power for any purpose, even the most corrupt, is immune from prosecution鈥� under this decision, she said.
Even the most private and non-official act鈥攍ike bribery, she said鈥攊s insulated because the president is commander in chief, and under the court鈥檚 rules laid down Monday, even if bribery charges are brought against a former president, prosecutors could not present evidence of a quid pro quo, she said. The money may have been the quid, but the quo was an official act which presumptively is insulated from prosecution.
Justice Amy Coney Barrett broke from her fellow conservatives on this important point, siding with the dissenters. 鈥淭he Constitution,鈥� she said, 鈥渄oes not require blinding juries to the circumstances鈥� of a presidents official, and allegedly illegal, action.
Many constitutional scholars had expected a split decision in Monday鈥檚 case, but few anticipated such a big win for Trump and for Executive power.
鈥淚 just don鈥檛 think anyone imagined that they would draw the line in a way that so clearly put a thumb on the scale for a President and for this particular former president,鈥� said NYU law professor Melissa Murray. For instance, she observed, the court seemed to say that any time the President talked to the Vice President, that conversation was presumptively immune from being disclosed to a jury, regardless of how incriminating it may have been.
鈥淚f I were in the Biden administration,鈥� Murray said, 鈥淚 would be running on this court鈥檚 enormous capacity to stoke chaos.鈥�
Georgetown University law professor Stephen Vladeck seemed to second that view.
鈥淭he next president probably gets to pick at least two, if not three, justices. Do we want that to be Donald Trump or want that to be Joe Biden? he asked, adding that 鈥渢he court did nothing鈥o make itself less of an issue in the election.鈥�
鈥淭he originalists in the room were actually the liberals,鈥� said Yale law professor Akhil Amar, one of the country鈥檚 leading constitutional scholars. He was flabbergasted by the decision, which he maintained is contrary to both the history and the text of the constitution.
Amar said that the court, by barring any consideration of motives in a criminal case against a former president, violated both common sense and the words of the constitution.
鈥淚 don鈥檛 love the criminalization of politics and going after ex-officials, but I think here they really created a Frankenstein, he said. 鈥淭here were ways of avoiding that without going nearly so far as they seemed to do.鈥�
Justice Clarence Thomas, speaking for himself alone, took an even more far-reaching position than the court鈥檚 other conservatives. He would have held the position of special prosecutor in the Justice Department is unconstitutional.
Justice Ketanji Brown Jackson joined Justice Sotomayor鈥檚 dissent, but wrote separately, accusing the majority of planting 鈥渢he seeds of absolute power鈥� for presidents, who until now had been constrained by the law. 鈥淚f one man can be allowed to determine for himself what is the law, every man can,鈥� she wrote, in quoting Justice Louis Brandeis, and 鈥渋t invites anarchy.鈥�
Both Justices Jackson and Sotomayor did not end their dissents, with the usual, 鈥淚 respectfully dissent.鈥� Instead, they simply said they dissented.
In other actions Monday, the court dealt another severe blow to the power of government agencies to regulate. The key question in the case, Corner Post v. Board of Governors of the Federal Reserve, was when exactly the clock starts and stops ticking for challenges to government regulations. By a vote of 6-to-3 along ideological lines, the court ruled against the government, and sided with business interests in elongating the period for challenging a final government regulation.
Previously, the rule was that the six-year statute of limitations began when the regulation became final. But on Monday, the court said that the an injured plaintiff could file a challenge to a final rule at any time he was injured, as long as it is within six years of the injury, not six years of the rule becoming final.
Writing for the conservative majority, Justice Amy Coney Barret found it troubling that under the government鈥檚 contrary view, 鈥渙nly those fortunate enough to suffer an injury within six years of a rule鈥檚 promulgation鈥� could sue while 鈥淸e]veryone else 鈥� no matter how serious the injury or how illegal the rule 鈥� has no recourse.鈥�
The upshot of the court鈥檚 holding is that that businesses, individuals, and corporate entities can challenge federal regulations long after they were initially promulgated and still be within the statute of limitations. That would appear to put on steroids last week鈥檚 decision abolishing so-called Chevron deference, which for 40 years deferred to reasonable agency regulations when a law is ambiguous.
Writing in dissent for the court鈥檚 three liberals, Justice Ketanji Brown Jackson argued that by further opening the floodgates of litigation, Monday鈥檚 ruling will increase the destabilizing effects of the court鈥檚 decision last week to overturn the Chevron precedent.
鈥淎t the end of a momentous Term, this much is clear,鈥� Jackson wrote. 鈥淭he tsunami of lawsuits against agencies鈥� authorized by last week鈥檚 decision and this one have 鈥渢he potential to devastate the functioning of the Federal Government.鈥�
And in a third major decision, the court declined to issue a final ruling in a set of major cases that challenged whether social media platforms, like newspapers and TV and radio networks, have a First Amendment right to decide what material to put on their platforms.
By a unanimous vote, the court instead voided two lower court decisions and sent the cases back to the Fifth Circuit Court of Appeals and the Eleventh Circuit for further proceedings commensurate with the high court鈥檚 instructions.
Writing for the court, Justice Elena Kagan said that 鈥渢here is much work to do below on both these cases鈥� and importantly, at the same time, she signaled that social media companies do have First Amendment rights to moderate content. 鈥淭he editorial judgments influencing the content of鈥� Facebook鈥檚 NewsFeed and YouTube鈥檚 homepage are 鈥減rotected expressive activity,鈥� said Kagan. She explicitly added that 5th Circuit鈥檚 ruling, which upheld a ban on content moderation in Texas, 鈥渨as wrong.鈥� Texas, she said, 鈥渕ay not interfere with those judgments simply because it would prefer a mix of messages.鈥�
Jordan Thomas contributed to this report
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