What does the SCOTUS presidential immunity decision really mean?

The courtroom at the U.S. Supreme Court (Photo from supremecourt.gov)

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  • Legal experts are somewhat split in their analysis to Carolina Journal. It sends Trump's case back to a lower court to decide what was "official" action and what was "unofficial" action, but the decision may have also unleashed a future of partisan legal wrangling.

On Monday, the United States Supreme Court ruled 6-3 that presidential immunity applies to official acts, not unofficial acts. This ruling means that Donald Trump cannot be prosecuted for acts within his constitutional powers as president. He can, however, be prosecuted for private acts. 

The ruling, written by Chief Justice John Roberts, overturned the lower court’s decision to reject Trump’s claim of immunity from federal criminal charges, which involved alleged efforts to undo his 2022 election loss to Biden. The 6-3 decision fell along ideological lines. 

“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 presidential authority,” read Roberts’ decision. “And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.”  

According to a Reuters report, this landmark ruling is the first time any form of presidential immunity from prosecution has been recognized. 

“This case is the first criminal prosecution in our Nation’s history of a former president for actions taken during his Presidency,” reads the decision. “Determining whether and under what circumstances such a prosecution may proceed requires careful assessment of the scope of Presidential power under the Constitution. The nature of that power requires that a former President may have some immunity from prosecution for official acts during his tenure in office.” 

Ilya Shapiro, constitutional law expert at the Manhattan Institute warned that the decision does not absolve the former president, nor does it make landmark changes in the law.

“Indeed, the ruling was both eminently predictable and, in any other context, utterly unremarkable: presidents are immune from prosecution for official acts but not for unofficial ones—and the devil of how that rule applies is in the details of lower-court evaluations of a president’s actions,” he tweeted following the ruling. “In other words, President Obama can’t be charged with murder for ordering drone strikes, but it will be up to the district court to determine whether President Trump took the election-related actions for which he was indicted in his official or personal/candidate capacity. I often criticize Chief Justice Roberts’s split-the-baby minimalism, but he did well here to issue a narrow and careful opinion, guiding judges without pre-judging this case.”

“I think what Ilya says is correct,” Jon Guze, senior fellow of legal studies for the John Locke Foundation, told the Carolina Journal in an email. “Roberts’ opinion is consistent with current law and doesn’t really change anything.”

President Trump’s indictment filed by a federal grand jury as part of the investigation into the January 6th attacks, alleges Trump and six co-conspirators organized false slates of electors in seven states, according to a report by Axios; Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin.

“Today, the Supreme Court recognized and breathed life into the important constitutional principle of separation of powers by providing former, current, and future presidents with absolute immunity for official acts that they undertook during their administrations and also made it clear that the burden falls on the prosecution to demonstrate that any action taken by a former president clearly falls beyond the outer perimeter of his official responsibilities and on the side of being an unofficial act,”  John G. Malcolm, Vice President of the Institute for Constitutional Government at the Heritage Foundation said in a statement. “The Court made it clear that Trump’s contacts with the Justice Department fall within the scope of official acts and that his contacts with Vice President Pence as well as most, if not all, of his public statements will fall within that scope. Without these protections, our presidents might well face unjust prosecutions by ambitious and politically biased prosecutors once they leave office, which would have a chilling effect that could harm our national interests and would do great damage to the institution of the presidency.”  

Clark Neily, senior vice president of legal studies at CATO Institute, says that the decision actually does create a sweeping new doctrine on presidential immunity.

“It’s hard to say whether we should be more grateful that it has taken this long for the Court to have to decide the scope of immunity from criminal prosecution for presidential acts or more concerned that the question may now arise regularly when the presidency changes hands from one political party to the other,” Neily told the Carolina Journal in an email. Monday. “Whether that will ensue remains to be seen, as does whether any of the federal and state charges against Trump for his efforts to overturn the last election can surmount the high immunity bar set by the Supreme Court.”

The Supreme Court ruled that the case should be sent back to the lower court to determine which alleged acts of Donald Trump’s indictment charges are official and unofficial. US District Court judge Tanya S. Chutkan will rule on which acts are official and unofficial. 

“Presidents must have the ability to make decisions without the fear of going to jail,” said Hans A. von Spakovsky, senior legal fellow at Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation. “Prosecuting official acts taken in office sets a dangerous precedent for future presidencies. Policy disagreements could quickly lead to throwing presidential opponents behind bars. That is un-American. The Supreme Court made the right call today and forever changed the office of the presidency for the better.”