After a lower court refused to grant him immunity from criminal prosecution for actions taken as President, Trump lodged an appeal to the conservative-majority SCOTUS on February 12. The SCOTUS has now ruled in favor of Trump, by a 6-3 conservative-liberal split. Trump is the prospective Republican nominee for this November’s presidential election.

‘Necessary to protect the President’

The majority opinion, authored by Chief Justice John Roberts, held that the President enjoys absolute immunity from criminal prosecution when exercising her “core constitutional powers” ​​so that she can take “bold and unhesitating action”, and is not hemmed in by “needless worry”. regarding possible damages “stemming from any particular official decision”.

This includes actions on the “outer perimeter” of the President’s official duties, as long as they are not “manifestly or palpably” beyond her authority. This language is borrowed from Nixon v Fitzgerald (1982) where the court held that Presidents enjoy absolute immunity in civil cases arising from their official duties.

Moreover, the majority held that courts cannot examine the motives of the President, and must ignore any evidence that is connected to actions covered by this immunity. This is to prevent the President from being “indirectly” prosecuted for official actions protected by immunity in other cases.

Trump has multiple allegations regarding his attempt to overturn the 2020 results. First, he allegedly pressured the Justice Department (DoJ) to convince states to replace legitimate Biden electors with ones in favor of Trump. Second, he allegedly attempted to convince Vice-President Mike Pence not to certify the election results (generally, a post-polls formality). Third, he interacted with the general public, state officials, and private parties to convince them the election was stolen. Fourth, he posted tweets and a public address which allegedly led to the Capitol Hill attack.

The SCOTUS ruled that Trump’s actions in concert with the DoJ fell within his “exclusive constitutional authority”, and thus provided him with absolute immunity. The rest of the charges were sent back to the District Court for case-by-case decisions, although the court noted that interactions with the VP were “at least presumptively immune” from criminal prosecution, and interactions with the public “are likely to fall comfortably within the outer perimeter of his official responsibilities”.

‘No man is above the law’

Justice Sonya Sotomayor authored a blistering dissent that was co-signed by Justices Ketanji Brown Jackson and Elena Kagan. She wrote that the majority opinion “makes a mockery of the principle, foundational to our Constitution and system of government, that no man is above the law.”

Describing the implications of the majority ruling, she said: “Whether described as presumptive or absolute, under the majority’s rule, a President’s use of any official power for any purpose, even the most corrupt, is immune from prosecution. That is just as bad as it sounds, and it is baseless”.

“Argument by argument, the majority invents immunity through brute force” she stated, despite the fact that immunity from criminal prosecution for official actions has “no firm grounding in constitutional text, history, or precedent”.

Justice Sotomayor argued that in criminal cases, there is a larger public interest in the outcome, as well as a decreased likelihood of interference with executive functions. This is because of the safeguards that already accompany criminal cases — allegations are filtered so only the most provable charges are put forth, and if the case ever goes to trial, it would have to be proven “beyond a reasonable doubt”.

Logically, according to Justice Sotomayor, this should mean that Presidents should not be immune from criminal liability. But, in this case, “the majority elides any difference between civil and criminal immunity, granting Trump the same immunity from criminal prosecution that Nixon enjoyed from an unlawful termination suit. That is plainly wrong.”

Implications for 2024

The SCOTUS’ decision can now allow Trump’s trial at the District of Columbia Court of Appeals to continue. Judge Tanya Chutkan will now have to decide on the specific allegations against Trump, with the knowledge that his criminal immunity claims hold far more weight than initially thought.

The Associated Press has reported that she intends to give both sides at least three months to prepare for the trial. This renders a decision before the November elections highly unlikely.

Trump has already been convicted in the Stormy Daniels hush money payment. If this conviction stays on his record or if any others are added, and he wins in November, the next big legal question to emerge will be if the President can grant himself a pardon.