Trump Wins: Supreme Court Says Presidents Covered by Immunity for ‘Official Acts’

President Donald Trump speaks with reporters as he boards Air Force One as he departs Tues
Alex Brandon / Associated Press

The U.S. Supreme Court ruled in favor of former President Donald Trump on Monday, holding in a 6-3 decision that presidents are covered by limited immunity from criminal prosecutions for actions taken while in office.

The decision is here.

The Court held, according to the summary of the decision:

Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.

The Court aso ruled that a president is entitled to a pretrial hearing on immunity that can be appealed all the way to the Supreme Court before a trial begins. 

This means that any trial of the former president will take place after the November 5, 2024, election. 

Chief Justice John Roberts, writing the opinion for the Court’s conservative majority, said:

This case poses a question of lasting significance: When may a former President be prosecuted for official acts taken during his Presidency? Our Nation has never before needed an answer. But in addressing that question today, unlike the political branches and the public at large, we cannot afford to fixate exclusively, or even primarily, on present exigencies. In a case like this one, focusing on “transient results” may have profound consequences for the separation of powers and for the future of our Republic.

The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution. And the system of separated powers designed by the Framers has always demanded an energetic, independent Executive. The

President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts. That immunity applies equally to all occupants of the Oval Office, regardless of politics, policy, or party.

In a footnote, Justice Roberts refers to last week’s decision in Fischer v. U.S. limiting federal prosecutors’ use of 18 U.S.C. § 1512(c)(2) to pursue January 6 defendants, saying that the trial court should also “determine in the first instance whether the Section 1512(c)(2) charges may proceed.”

In a concurring opinion, Justice Clarence Thomas questioned the constitutionality of Smith’s appointment:

I write separately to highlight another way in which this prosecution may violate our constitutional structure. In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States. But, I am not sure that any office for the Special Counsel has been “established by Law,” as the Constitution requires.

By requiring that Congress create federal offices “by Law,” the Constitution imposes an important check against the President—he cannot create offices at his pleasure. If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President.

No former President has faced criminal prosecution for his acts while in office in the more than 200 years since the founding of our country. And, that is so despite numerous past Presidents taking actions that many would argue constitute crimes. If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people. The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding.

We must respect the Constitution’s separation of powers in all its forms, else we risk rendering its protection of liberty a parchment guarantee.

Justice Sonia Sotomayor led the Court’s three liberals in dissent, writing:

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. 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.

The case will now be remanded, and will likely result in the dismissal of some or all of the charges facing the former president in federal court in Washington, D.C., relating to the Capitol riot of January 6.

The case is Trump v. United States, No. 23-939 in the Supreme Court of the United States.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, “The Trumpian Virtues: The Lessons and Legacy of Donald Trump’s Presidency,” now available on Audible. He is also the author of the e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.


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