Supreme Court Delivers Landmark Ruling on Presidential Immunity

The most significant of the several high-profile Supreme Court decisions made during this term is this one. Not only will the ruling have implications for former president Donald Trump but also for future Oval Office occupants and current and past presidents.

A former president has absolute immunity when it comes to the constitutional core powers. They also have immunity presumption for official acts. However, there is no immunity for acts not considered official.

Roberts stressed the importance of his ruling.

John Marshall, Chief Justice, in A Friend of Constitution No. 5, Alexandria Gazette of 7th July 1819, in John Marshall’s Defense of McCulloch’s v. Maryland (G. Gunther ed. 1969), said that “[t]he peculiarities of a moment can make a particular measure wiser or not, but it cannot make it less constitutional or more constitutional.”

This case is governed by these principles. The President is entitled to presumptive immunity for all his official acts.

Although the Court did not make a decision on which acts are immune from prosecution, it gave some guidance to lower courts in stating that:

Below, we provide some guidance. Certain accusations, such as those involving Trump’s conversation with the Acting AG are easily classified based on his relationship with that office. Other allegations, including those involving Trump’s interaction and comments with state officials, private parties, and the public are more complicated. While there are several factors relevant to classifying and determining immunity, it’s best to leave the analysis to lower courts.

Roberts summarized his decision in the following way:

The dissents have a tone that is completely disproportional with what the Court decides today: that immunity applies only to official conversations that take place between the Attorney General of the President and the Court and that the lower courts should determine “in the initial instance” whether Trump’s conduct still qualifies for immunity.

We weighed in on the debate that took place on April 25th.

Jack Smith, Special Counsel to the U.S. Supreme Court, grilled Michael Drebeen with hostile questions. Drebeen is a Supreme Court veteran who has been involved in more than 100 Supreme Court cases, including Robert Mueller’s unethical investigation of President Trump.

Trump claimed that all his actions before January 20, 2020, are covered by his immunity. Trump said that the office would not function if the President was always watching his back for fear of a post-presidential prosecution. I agree. Smith stated that despite the Justice Department’s policy to not prosecute former presidents, Trump was such a serious and unique threat to the Republic, that it was needed in this case.

This is a major decision that will be debated for years to come.