The US supreme court has ruled that former presidents are entitled to some degree of immunity from criminal prosecution, dramatically reducing the likelihood that the federal criminal case against Donald Trump on charges he plotted to stop the transfer of power will proceed before the 2024 election.
The court’s conservative majority – which Trump helped create – found 6-3 that presidents were protected from prosecution for official actions that extended to the “outer perimeter” of his office, but could face charges for unofficial conduct.
Trump is accused of overseeing a sprawling effort to subvert the 2020 election, including two counts of conspiring to obstruct the certification of the election results, conspiring to defraud the government, and conspiring to disenfranchise voters.
Among the accusations: Trump spread false claims of election fraud, plotted to recruit fake slates of electors, pressured US justice department officials to open sham investigations into election fraud, and pressured his vice-president, Mike Pence, to obstruct Congress’s certification of Joe Biden’s win.
To determine whether Trump’s alleged attempts to overturn the 2020 election results came under the protected auspices of his official duties, the supreme court remanded the case back to the presiding US district judge Tanya Chutkan, who will have to review the indictment line by line.
The court left the bulk of the analysis up to Chutkan. But Chief Justice John Roberts, writing for the majority, found that Trump’s threat to fire the then-acting attorney general for refusing to open investigations were protected, because the justice department is part of the executive branch.
Roberts similarly found that Trump’s effort to pressure Pence was probably protected, as the president discussing responsibilities with the vice president was an instance of official conduct. “Trump is at least presumptively immune from prosecution for such conduct,” the opinion said.
The final decision on the Pence question rested with Chutkan, wrote Roberts. The burden was on prosecutors to “rebut the presumption of immunity” and whether charging Trump would “pose any dangers of intrusion on the authority and functions of the Executive Branch”.
And on the matter of Trump’s remarks on January 6, Roberts wrote that they too were probably protected, since presidential addresses were an integral function of the office. But the opinion also allowed that in Trump’s case, it may be more appropriate to categorize his speech as that of a candidate for office.
The ruling in Trump’s election subversion case was one of the last handed down by the supreme court this term. In waiting until the end, the conservative majority played into Trump’s benefit and legal strategy of trying to delay any trial as much as possible.
The effect of the ruling to block a prompt trial, after the court moved quickly to keep Trump on the ballot in March, has already ignited fierce criticism by liberals and others who believe Trump’s case should be resolved before voters cast their ballots in the forthcoming election.
Trump’s legal strategy for all of his federal criminal cases – he also faces charges in Florida for illegally retaining classified documents – has been to delay them until after the election, in the hope that he will be re-elected and can appoint as attorney general a loyalist who would drop the charges.
As the calendar now stands, a trial in Trump’s election subversion case cannot start until 20 September at the earliest, since Trump’s lawyers have 88 days left on the clock to prepare a defense after the case was automatically frozen when they launched the immunity appeal.
Last October, Trump filed to dismiss the indictment on grounds that he enjoyed absolute immunity from prosecution. After Chutkan denied the motion, Trump moved to challenge her ruling on 8 December at the US court of appeals for the DC circuit.
The appeal carried an automatic stay that froze the trial proceedings, because if Trump won his immunity claim, it would foreclose any prosecution. As a result, the clock counting down to the original trial date of 4 March was paused with 88 days remaining.
Trump’s election subversion case remained frozen as the supreme court considered his immunity claim, after the DC circuit denied the appeal, with the conservative justices showing no urgency to resolve the case at oral argument partly because they appeared to see the case as politically motivated.
As the justices worked through potential tests to delineate between official and private conduct, Justice Amy Coney Barrett suggested the special counsel could always get around the time-consuming process by editing his own indictment and bringing the case on unambiguously private acts.