All six of the court’s conservatives ruled on Monday that the president is entitled to absolute immunity for official acts involving his core responsibilities — pardons, say, or recognizing foreign nations or removing appointed officers. Moreover, he’s entitled to what’s known as presumptive immunity for official acts that aren’t related to those core responsibilities. This presumption can be overcome only if a prosecutor can show that holding him accountable won’t intrude on the executive branch’s ability to function — as Chief Justice John G. Roberts Jr. put it, writing for the court, that it wouldn’t prevent the president from taking the “bold and unhesitating action” essential to his job. Liability isn’t spared for unofficial, or private, conduct. But that’s not terribly comforting. While the commander in chief embezzling money or even falsifying business records to cover up an affair is unseemly, these are hardly threats to democracy.
The immediate consequence has to do with the Trump trial timeline: The Supreme Court has instructed District Court Judge Tanya S. Chutkan, who is presiding over Mr. Trump’s election interference case, to determine which of the charges in the Justice Department’s indictment concern official versus unofficial acts — and, therefore, which remain valid grounds for prosecuting the former president. Even if she moves quickly, Mr. Trump will have a chance to appeal to the circuit court; if he loses that appeal, he can ask the Supreme Court to consider the case again.
The justices could have simply sorted out such issues themselves this week. Instead, they’ve ensured the case will remain in limbo indefinitely. That’s convenient for Mr. Trump, who seeks to delay any verdict until after he might be president again, at which point he could order the Justice Department to drop the charges.
More important, Mr. Trump notched a win on the substance — and, really, so has any president or candidate for president keen on abusing the office. The court explicitly addressed certain parts of Mr. Smith’s indictment: Mr. Trump’s attempts to pressure his Justice Department to investigate supposed voter fraud, for instance, is “readily categorized” as an official act. His conversations with Mike Pence pressuring the then-vice president to nullify the 2020 election results, meanwhile, occupy uncertain territory. One might imagine his speech on the White House Ellipse urging his supporters to march on the Capitol was clearly an unofficial act — but one can only imagine, until the courts weigh in.
Another snag for prosecutors: The decision (in the only essential point on which Justice Amy Coney Barrett differed with her conservative colleagues) prohibits them from using any evidence related to official acts to prove charges related to unofficial acts. That’s only one example of how troublingly broad the Supreme Court’s new presidential immunity standards are. By declaring motive irrelevant in assessing presidential liability for a crime, the majority invited questions about whether all kinds of abominable violations are now fair game.
The minority laid out some of them: “Orders the Navy’s Seal Team 6 to assassinate a political rival?” asks Justice Sotomayor. “Immune,” she answered. “Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.” Justice Sotomayor declared that the ruling renders the president “a king above the law.”
Was Richard M. Nixon right, then, when he said, “When the president does it, that means it’s not illegal?” Well, not quite. Grave warnings aside, the sky has not yet fallen, even if a sizable chunk of it might be missing. Ex-presidents can still conceivably be punished for those official acts that don’t relate to a president’s core responsibilities — if prosecutors can convincingly argue that punishment wouldn’t hinder a vigorous executive branch. Those who commit misdeeds on the president’s behalf — Seal Team 6, in that one hypothetical — could be criminally liable for their actions. Courts could also continue to order the executive branch to halt improper activity, as they do regularly, regardless of whether the president is locked up after leaving office for the misconduct.
So it is up to the courts, including the highest in the land, to ensure the nightmare scenarios the critics have dreamed up do not manifest. The trouble is, this week’s opinion invites presidents to push the boundaries.
