The Trump Immunity Ruling Is Here—And It’s Complicated

What are your thoughts—on this decision, or any other from the SCOTUS Term that just concluded?

Anti-Trump protesters in front of the U.S. Supreme Court (photo by Julia Nikhinson via Getty Images).

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This morning, October Term 2023 came to an end at the U.S. Supreme Court. The Court issued three opinions.

First, in Corner Post, Inc. v. Board of Governors of the Federal Reserve System, the Court held that a claim brought under the Administrative Procedure Act “accrues when the plaintiff has the right to assert it in court—and in the case of the APA, that is when the plaintiff is injured by final agency action.” Justice Amy Coney Barrett wrote for the Court and Justice Ketanji Brown Jackson dissented, joined by Justices Sonia Sotomayor and Elena Kagan.

Second, in Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton—the big social-media cases out of Florida and Texas, consolidated for purposes of issuing opinions—the Court vacated the judgments of the Eleventh and Fifth Circuits. According to the opinion of the Court by Justice Kagan, “neither Court of Appeals properly considered the facial nature of NetChoice’s challenge.” Justices Clarence Thomas and Samuel Alito issued opinions concurring in the judgment, and Justice Neil Gorsuch joined the Thomas concurrence. No justice dissented.

Finally, in what most folks viewed as the main event, the Court issued its eagerly awaited opinion in Trump v. United States. Here’s some key language from the majority opinion by Chief Justice John Roberts, joined by all six conservative justices:

We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity. At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient.

What about the argument that immunity places a president “above the law”? Here’s what the Roberts opinion says on that score:

The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution. And the system of separated powers designed by the Framers has always demanded an energetic, independent Executive.

The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts. That immunity applies equally to all occupants of the Oval Office, regardless of politics, policy, or party.

The Court therefore vacated the opinion of the D.C. Circuit, which painted with a much broader brush, and remanded for further proceedings.

And what does all this mean, practically speaking, for the federal prosecution of Donald Trump on charges related to the 2020 election? Again from the Chief’s opinion:

Critical threshold issues in this case are how to differentiate between a President’s official and unofficial actions, and how to do so with respect to the indictment’s extensive and detailed allegations covering a broad range of conduct. We offer guidance on those issues below.

Certain allegations—such as those involving Trump’s discussions with the Acting Attorney General—are readily categorized in light of the nature of the President’s official relationship to the office held by that individual. Other allegations—such as those involving Trump’s interactions with the Vice President, state officials, and certain private parties, and his comments to the general public—present more difficult questions.

Although we identify several considerations pertinent to classifying those allegations and determining whether they are subject to immunity, that analysis ultimately is best left to the lower courts to perform in the first instance.

So it’s hard to figure out the exact implications of this ruling for the Trump case currently pending in the U.S. District Court for the District of Columbia (D.D.C.); Judge Tanya Chutkan will have to apply the SCOTUS opinion to the allegations before her. But one thing is clear, if wasn’t clear already: this case is not going to trial before the November 2024 election.

Justice Barrett, who joined all of the Chief’s opinion except Part III–C, wrote a concurrence. She disagreed with the majority on the extent to which “the Constitution limits the introduction of protected conduct as evidence in a criminal prosecution of a President, beyond the limits afforded by executive privilege.”

Justice Sotomayor dissented, joined by Justices Kagan and Jackson, and Justice Jackson filed a dissenting opinion of her own. Here’s the opening paragraph of the Sotomayor dissent:

Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. Relying on little more than its own misguided wisdom about the need for “bold and unhesitating action” by the President, ante, at 3, 13, the Court gives former President Trump all the immunity he asked for and more. Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent.

And here’s her closing:

Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop.

With fear for our democracy, I dissent.

As noted by Amy Howe in the SCOTUSblog liveblog, Justice Sotomayor omitted the adverb “respectfully” before the verb “dissent.”

So did Justice Jackson, in a dissent exploring “the theoretical nuts and bolts of what, exactly, the majority has done today to alter the paradigm of accountability for Presidents of the United States.” From the conclusion of the Jackson dissent:

The majority of my colleagues seems to have put their trust in our Court’s ability to prevent Presidents from becoming Kings through case-by-case application of the indeterminate standards of their new Presidential accountability paradigm. I fear that they are wrong. But, for all our sakes, I hope that they are right.

In the meantime, because the risks (and power) the Court has now assumed are intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms, I dissent.

The reference to “prevent[ing] Presidents from becoming Kings” echoes a line from an opinion Jackson wrote as a D.D.C. judge, declaring that “presidents are not kings.”

So, readers, what do you think? Needless to say, I haven’t had the chance to digest 119 pages of opinions, so I welcome your observations to guide me as I read.

Please share your thoughts in the comments of this Notice and Comment post—which I’ve opened up to all, not just paid subscribers. While I’m guessing most of you will focus on the Trump immunity ruling, please feel free to talk about other decisions from the Term or the Court more generally.

Thanks for your insights, as always, and early wishes for a wonderful Fourth of July.

P.S. I also look forward to hearing what Sarah Isgur and David French have to say about the Trump ruling over at Advisory Opinions—part of The Dispatch, which you can check out using this special offer for subscribers of Original Jurisdiction.

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