{"id":472,"date":"2024-07-01T17:10:00","date_gmt":"2024-07-01T17:10:00","guid":{"rendered":"http:\/\/audiomateria.com\/?p=472"},"modified":"2025-02-21T19:19:21","modified_gmt":"2025-02-21T19:19:21","slug":"the-supreme-courts-disastrous-trump-immunity-decision-explained","status":"publish","type":"post","link":"http:\/\/audiomateria.com\/index.php\/2024\/07\/01\/the-supreme-courts-disastrous-trump-immunity-decision-explained\/","title":{"rendered":"The Supreme Court\u2019s disastrous Trump immunity decision, explained"},"content":{"rendered":"
\n

\"\"

Former President Donald Trump greets Chief Justice John Roberts before the 2020 State of the Union address. | Olivier Douliery\/AFP via Getty Images<\/figcaption><\/figure>\n

The Court\u2019s six Republicans handed down a decision on Monday that gives Donald Trump such sweeping immunity from prosecution that there are unlikely to be any legal checks on his behavior if he returns to the White House. The Court\u2019s three Democrats dissented.<\/p>\n

Trump v. United States<\/em><\/a> is an astonishing opinion. It holds that presidents have broad immunity from criminal prosecution \u2014 essentially, a license to commit crimes \u2014 so long as they use the official powers of their office to do so.<\/p>\n

Broadly speaking, Chief Justice John Roberts\u2019s majority opinion reaches three conclusions. The first is that when the president takes any action under the authority given to him by the Constitution itself, his authority is \u201cconclusive and preclusive\u201d and thus he cannot be prosecuted. Thus, for example, a president could not be prosecuted for pardoning someone, because the Constitution explicitly gives the chief executive the \u201cPower to Grant Reprieves and Pardons for Offences against the United States.\u201d<\/p>\n

One question that has loomed over this case for months is whether presidential immunity is so broad that the president could order the military to assassinate a political rival. While this case was before a lower court, one judge asked if Trump could be prosecuted if he\u2019d ordered \u201cSEAL Team 6 to assassinate a political rival\u201d<\/a> and Trump\u2019s lawyer answered that he could not unless Trump had previously been successfully impeached and convicted for doing so.<\/p>\n

Roberts\u2019s opinion in Trump<\/em>, however, seems to go even further than Trump\u2019s lawyer did. The Constitution, after all, states that the president \u201cshall be commander in chief of the Army and Navy of the United States.\u201d So, if presidential authority is \u201cconclusive and preclusive\u201d when presidents exercise their constitutionally granted powers, the Court appears to have ruled that yes, Trump could order the military to assassinate one of his political opponents. And nothing can be done to him for it.<\/p>\n

As Justice Ketanji Brown Jackson writes in dissent<\/a>, \u201cfrom this day forward, Presidents of tomorrow will be free to exercise the Commander-in-Chief powers, the foreign-affairs powers, and all the vast law enforcement powers enshrined in Article II however they please \u2014 including in ways that Congress has deemed criminal and that have potentially grave consequences for the rights and liberties of Americans.\u201d<\/p>\n

Roberts\u2019s second conclusion is that presidents also enjoy \u201cat least a presumptive immunity from criminal prosecution for a President\u2019s acts within the outer perimeter of his official responsibility.\u201d Thus, if a president\u2019s action even touches on his official authority (the \u201couter perimeter\u201d of that authority), then the president enjoys a strong presumption of immunity from prosecution.<\/p>\n

This second form of immunity applies when the president uses authority that is not specifically mentioned in the Constitution, and it is quite broad \u2014 most likely extending even to mere conversations between the president and one of his subordinates.<\/p>\n

The Court also says that this second form of immunity is exceptionally strong. As Roberts writes, \u201cthe President must therefore be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no \u2018dangers of intrusion on the authority and functions of the Executive Branch.\u2019<\/a>\u201d<\/p>\n

Much of Roberts\u2019s opinion, moreover, details just how broad this immunity will be in practice. Roberts claims, for example, that Trump is immune from prosecution for conversations between himself and high-ranking Justice Department officials, where he allegedly urged them to pressure states to \u201creplace their legitimate electors\u201d with fraudulent members of the Electoral College who would vote to install Trump for a second term.<\/p>\n

Roberts writes that \u201cthe Executive Branch has \u2018exclusive authority and absolute discretion\u2019 to decide which crimes to investigate and prosecute,\u201d and thus Trump\u2019s conversations with Justice Department officials fall within his \u201cconclusive and preclusive authority.\u201d Following that logic, Trump could not have been charged with a crime if he had ordered the Justice Department to arrest every Democrat who holds elective office.<\/p>\n

Elsewhere in his opinion, moreover, Roberts suggests that any conversation between Trump and one of his advisers or subordinates could not be the basis for a prosecution. In explaining why Trump\u2019s attempts to pressure Vice President Mike Pence to \u201cfraudulently alter the election results\u201d likely cannot be prosecuted, for example, Roberts points to the fact that the vice president frequently serves \u201cas one of the President\u2019s closest advisers.\u201d\u00a0<\/p>\n

Finally, Roberts does concede that the president may be prosecuted for \u201cunofficial\u201d acts. So, for example, if Trump had personally attempted to shoot and kill then-presidential candidate Joe Biden in the lead-up to the 2020 election, rather than ordering a subordinate to do so, then Trump could probably be prosecuted for murder.<\/p>\n

But even this caveat to Roberts\u2019s sweeping immunity decision is not very strong. Roberts writes that \u201cin dividing official from unofficial conduct, courts may not inquire into the President\u2019s motives.\u201d And Roberts even limits the ability of prosecutors to pursue a president who accepts a bribe in return for committing an official act, such as pardoning a criminal who pays off the president. In Roberts\u2019s words, a prosecutor may not \u201cadmit testimony or private records of the President or his advisers probing the official act itself.\u201d<\/p>\n

That means that, while the president can be prosecuted for an \u201cunofficial\u201d act, the prosecutors may not prove that he committed this crime using evidence drawn from the president\u2019s \u201cofficial\u201d actions.<\/p>\n

The practical implications of this ruling are astounding. As Justice Sonia Sotomayor writes in a dissenting opinion, \u201cimagine a President states in an official speech that he intends to stop a political rival from passing legislation that he opposes, no matter what it takes to do so,\u201d it follows from Roberts\u2019s opinion that the ensuing murder indictment \u201ccould include no allegation of the President\u2019s public admission of premeditated intent to support\u201d the proposition that the president intended to commit murder.<\/p>\n

Monday\u2019s decision, in other words, ensures that, should Trump return to power, he will do so with hardly any legal checks. Under the Republican justices\u2019 decision in Trump<\/em>, a future president can almost certainly order the assassination of his rivals. He can wield the authority of the presidency to commit countless crimes. And he can order a subordinate to do virtually anything.<\/p>\n

And nothing can be done to him.<\/p>\n","protected":false},"excerpt":{"rendered":"

Former President Donald Trump greets Chief Justice John Roberts before the 2020 State of the Union address. | Olivier Douliery\/AFP via Getty Images The Court\u2019s six Republicans handed down a decision on Monday that gives Donald Trump such sweeping immunity from prosecution that there are unlikely to be any legal checks on his behavior if…<\/p>\n","protected":false},"author":1,"featured_media":474,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[15],"tags":[],"class_list":["post-472","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-trump-investigations"],"_links":{"self":[{"href":"http:\/\/audiomateria.com\/index.php\/wp-json\/wp\/v2\/posts\/472","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/audiomateria.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/audiomateria.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/audiomateria.com\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/audiomateria.com\/index.php\/wp-json\/wp\/v2\/comments?post=472"}],"version-history":[{"count":2,"href":"http:\/\/audiomateria.com\/index.php\/wp-json\/wp\/v2\/posts\/472\/revisions"}],"predecessor-version":[{"id":475,"href":"http:\/\/audiomateria.com\/index.php\/wp-json\/wp\/v2\/posts\/472\/revisions\/475"}],"wp:featuredmedia":[{"embeddable":true,"href":"http:\/\/audiomateria.com\/index.php\/wp-json\/wp\/v2\/media\/474"}],"wp:attachment":[{"href":"http:\/\/audiomateria.com\/index.php\/wp-json\/wp\/v2\/media?parent=472"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/audiomateria.com\/index.php\/wp-json\/wp\/v2\/categories?post=472"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/audiomateria.com\/index.php\/wp-json\/wp\/v2\/tags?post=472"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}