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The Supreme Court Says Presidents Have Immunity for ‘Official’ Acts, Complicating Trump’s Prosecution

The court’s 6-3 decision means former President Donald Trump is unlikely to go to trial for election interference charges before Election Day.

State of the Union AP-AP-20036117941165
Leah Millis/AP

The Supreme Court held Monday that presidents have immunity from criminal prosecution for a broad swath of official conduct even after they leave office. But it sent the thorniest questions about how that immunity applied to Donald Trump’s actions in the aftermath of the 2020 election back to a lower court for consideration.

The 6-3 decision, which largely broke down along ideological lines, casts doubt on some aspects of the case that special counsel Jack Smith brought against Trump on charges stemming from his attempts to stop certification of Joe Biden’s 2020 election victory. It too limits whether testimony or documents from Trump’s presidency could be used as evidence at trial, further complicating what a jury could see.

But the court also left the door open for other parts of the case to proceed after a further review by the trial court — a process that would offer Trump more opportunities for appeal and delay. The decision almost certainly means that he will not face a criminal trial in Washington, D.C., before voters go to the polls in November. The court also rejected a novel constitutional theory advanced by Trump that an indictment could only proceed if a president was first impeached and convicted by the Senate.

Chief Justice John Roberts wrote the decision, which largely broke down along ideological lines. Justice Sonia Sotomayor dissented, joined by Justices Elena Kagan and Ketanji Brown Jackson. Justice Amy Coney Barrett joined most of the majority opinion, but dissented in part, saying she did not fully accept the sweep of the conservative majority’s opinion.

“The President is not above the law,” the majority wrote. “But under our system of separated powers, the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts.”

But, the majority also warned that they were not accepting Trump’s sweeping claims that he was completely immune. “Trump asserts a far broader immunity than the limited one we have recognized,” they wrote.

Sotomayor, writing for the minority, argued: “Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.”

Trump was indicted on four counts in August last year as part of special counsel Jack Smith’s investigation into the Jan. 6 attacks on the U.S. Capitol. Prosecutors alleged that Trump broke several laws in his attempts to overturn his defeat in the 2020 election.

Trump’s attorneys argued in court that the former president should be granted complete immunity for his actions while in office — even if that included an attempted coup or ordering the death of a political rival. His lawyers asserted that this protection should apply even after Trump’s time as president, which would cover any efforts to overturn the results of the 2020 election.

The former president called presidential immunity “A MUST” on Sunday evening and applauded the decision on Monday.


In Nixon and Clinton-era cases, the Supreme Court held that presidents have civil immunity for official actions. Monday’s ruling extended that doctrine into the realm of criminal law after Trump became the first president to face felony charges at both the state and federal levels.

Two aspects of Smith’s case are either dead or in serious jeopardy. First, the court held that Trump’s interactions with the Justice Department were part of his official actions, and he was absolutely immune from prosecution for those interactions. The court further suggested that he was presumptively entitled to immunity in his interactions with Vice President Mike Pence in the lead-up to the congressional certification of the Electoral College vote on Jan. 6. — but it left a final call to the trial judge.

On other aspects of the case, however, the court seemed less sympathetic to Trump’s immunity arguments. Writing about a scheme from Trump and his Republican allies to submit false slates of electors to Congress, the majority wrote: “Trump can point to no plausible source of authority enabling the president to not only organize alternate slates of electors but also cause those electors — unapproved by any state official — to transmit votes to the President of the Senate for counting.”

The case could also have ripple effects in the two state-level prosecutions being brought against Trump. Trump was convicted in May by a jury in New York on 34 courts of falsifying business records. He’s also facing a sprawling racketeering case in Georgia. The court’s immunity decision could offer Trump’s legal team opportunities to raise further challenges.

While the New York case is largely about actions Trump took during the 2016 presidential campaign, the Georgia case treads on similar ground to Smith’s case.

David Becker, executive director of the Center for Election Innovation & Research, believes that the Georgia case will be able to continue.

Trump’s phone call to Georgia Secretary of State Brad Raffensperger in which Trump asked him to find 11,780 votes, for instance — “that’s a fairly clear, cut and dried unofficial act,” Becker said.

Byron Tau and Jose Pagliery are reporters at NOTUS. Ben T.N. Mause and Calen Razor are NOTUS reporters and Allbritton Journalism Institute fellows.