Hours after the Supreme Court granted Donald Trump broad immunity from criminal prosecution, President Joe Biden spoke from the White House podium to rebuke the “dangerous precedent.”
“I concur with Justice [Sonia] Sotomayor’s dissent today,” Biden said.
But if Special Counsel Jack Smith is to have any chance of prosecuting the former president, then his team better hope that Sotomayor has it wrong.
Even if some of Sotomayor’s scathing lines have been widely reported, the upshot of her bleak analysis has been largely ignored. The Supreme Court’s majority purported to leave prosecutors across the country a path to bring cases against Trump to trial and possibly, conviction — but if Sotomayor is right, Trump’s criminal cases have been severely hobbled, if not entirely eliminated. She wrote that the Supreme Court granted “former President Trump all the immunity he asked for and more.”
As Trump’s four criminal cases swirl around state, federal and appellate courts, the question remains: Is Sotomayor correct?
The New ‘Loaded Weapon’ of Presidential Immunity
As Sotomayor views it, the Supreme Court’s 6-3 conservative majority effectively authorized political assassinations, coups d’etat, and corrupt pardons. Despite criticizing her for “fear mongering based on extreme hypotheticals,” Chief Justice John Roberts never contradicts this interpretation about the reach of his ruling. Instead, he invokes, as he sees it, the “more likely prospect” of an “Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next.”
Those prospects aside, for Sotomayor, the majority has left virtually no constraints in the criminal code for how a president can exploit the trappings of that office: “In every use of official power, the President is now a king above the law.”
No wonder Sotomayor signed off her ruling with the line: “With fear for our democracy, I dissent,” without even a customary or perfunctory “respectfully.” For good measure, Sotomayor compared the ruling to one of the Supreme Court’s most infamous opinions: Korematsu v. United States, the now-overturned World War II-era precedent that justified Japanese-American internment. She argues that the Supreme Court’s cloak of presidential “impunity” now hangs like the “loaded weapon” that the late Justice Robert Jackson, a former prosecutor at the Nuremberg war crimes trials, warned the country about in his dissenting opinion in Korematsu.
For Now, Most of Trump’s Federal Election Interference Case Survives
Officially, Roberts and his fellow conservative justices created an elaborate framework to determine which allegations against Trump can survive to trial. This analysis depends on whether Trump’s actions are classified as “official” conduct, and if they are, whether they are entitled to “absolute immunity” or “presumptive immunity.”
“As for a President’s unofficial acts, there is no immunity,” the Court ruled.
On the surface, the Court categorically barred only a small part of the conduct that Smith charged — namely, those acts involving the allegations that Trump tried to pressure the Justice Department to help overturn his 2020 election defeat. By contrast, Trump’s alleged efforts to pressure then-Vice President Mike Pence to block the certification of Biden’s victory is a closer call. While Trump had broad power over the Justice Department, Pence played a more complicated role in the constitutional scheme on Jan. 6, 2020. Though the second highest official in the executive branch, Pence then served as president of the Senate, a separate branch of government. The Court ultimately punted on the question, allowing a federal judge in Washington, D.C. to sort through the details, though it did signal that a presumption of immunity might apply to that conduct.
Smith’s indictment also charges Trump with a litany of actions that seemingly have little, or nothing, to do with the presidency, including the false-electors scheme, pressuring state officials to reverse the results, and rallying his supporters who then went on to attack the Capitol on Jan. 6. Despite calling the question “difficult,” Roberts seemed to suggest all of these actions could be “unofficial acts,” and again left a lower court to fill in the details.
Is the Supreme Court Pathway to Prosecute Trump ‘Illusory’?
Despite the fact that her colleagues left most of Trump’s indictment intact, Sotomayor argued that the system the majority created for determining immunity amounts to a “game,” rigged for Trump to win. Take the phrases “absolute immunity” and “presumptive immunity,” a distinction that Sotomayor calls “illusory.” To survive dismissal, the government must show that prosecuting presumptively immune acts — like perhaps Trump’s pressure campaign on Pence — poses “no ‘dangers of intrusion on the authority and functions of the Executive Branch.’”
“No dangers, none at all,” Sotomayor writes, mockingly. “It is hard to imagine a criminal prosecution for a President’s official acts that would pose no dangers of intrusion on Presidential authority in the majority’s eyes.”
Sotomayor appeared equally unimpressed with the majority’s finding that Trump can be prosecuted for “unofficial acts,” arguing that Roberts has reduced that phrase “almost to a nullity.” During oral arguments, Trump’s lead attorney John Sauer conceded that many of the former president’s alleged actions “sound private,” but Sotomayor noted that the majority refused to endorse even these concessions to declare any of the allegations fair game for prosecution.
“In reaching out to shield some conduct as official while refusing to recognize any conduct as unofficial, the majority engages in judicial activism, not judicial restraint,” she wrote in a footnote.
Roberts set a high bar for declaring presidential actions “unofficial,” reserved only for those “manifestly and palpably” beyond the president’s authority. On top of that, courts cannot look into a president’s motive — or use evidence of immune official acts to prove allegations of unofficial conduct.
“Under that rule, any use of official power for any purpose, even the most corrupt purpose indicated by objective evidence of the most corrupt motives and intent, remains official and immune,” Sotomayor wrote.
If any part of Trump’s indictment survives, Sotomayor fears that the criminal case will crumble because of the majority’s newly created prohibition on evidence tied to the president’s “official acts,” which she says will leave the prosecution “without teeth.” Her fellow dissenters, Justices Elena Kagan and Ketanji Brown Jackson, appeared to agree, and Jackson wrote separately to rebuke the majority for creating a risk of “autocracy.”
Is the President, in Theory or in Practice, Above Criminal Law?
A close reading of the lead opinion, concurrences, and dissents in Trump v. United States appears to have created a Shrodinger’s prosecution of the former president: alive in the eyes of the conservative majority and dead, or at least moribund, in the eyes of the liberal dissenters.
“The President is not above the law,” Roberts declared. “But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution.”
At least for now, all four of Trump’s criminal cases remain kicking in New York, Florida, Georgia, and Washington, D.C. Each of these jurisdictions will assess the significance of the Supreme Court’s ruling and come to their own conclusions about how broadly Trump’s immunity sweep’s under the newly created regime. The Court’s ruling has already made waves in New York, where Trump recently won a sentencing delay for his 34-count felony conviction, pushing the proceedings by more than two months until at least Sept. 18.
In the federal election interference case, Trump’s reckoning will likely come in the form of an evidentiary hearing likened to a “mini-trial,” which will serve as the closest proceeding the public will get to the real thing before Election Day.
After those proceedings, U.S. District Judge Tanya Chutkan may decide that Trump can be prosecuted for every alleged act over which the Supreme Court has not expressly found him immune. Trump can also challenge Chutkan’s determinations before any trial starts, which he has every incentive to do, further inviting the Supreme Court to weigh and assess the nature of presidential power.
Jack Smith Finds an Unlikely Ally in His Case Against Trump
If such a case does eventually return to the Supreme Court, Smith would have at least four votes in his favor.
Justice Any Coney Barrett’s concurring opinion all but endorses prosecuting Trump for some of the key actions alleged in the indictment. On the false-electors scheme, Barrett wrote: “In short, a President has no legal authority—and thus no official capacity—to influence how the States appoint their electors. I see no plausible argument for barring prosecution of that alleged conduct.”
Barrett also signaled that she would green-light allegations concerning Trump’s pressure campaigns on state officials. “The President has no authority over state legislatures or their leadership, so it is hard to see how prosecuting him for crimes committed when dealing with the Arizona House Speaker would unconstitutionally intrude on executive power,” Barrett wrote in her concurring opinion.
Since Barrett joined the majority opinion, she is on record as believing that the majority decision allows for these outcomes. In one of the case’s ironies, Trump is more likely to endorse Sotomayor’s sweeping analysis of the majority’s opinion, and prosecutors are more likely to argue Barrett’s more narrow view. Four votes, joining Barrett with the liberal justices, will not send Trump on a path to trial, and so the future of the federal election interference case depends upon whether any of the court’s other five conservatives agree to advance any case that survives their test.