‘Above the law’ in some cases: Supreme Court gives Trump − and future presidents − a special exception that will delay his prosecution

The justices said it was up to the district court to determine which actions the indictment alleged Trump took were “official” and which were “unofficial” and thus not protected by immunity.

It offered a few guidelines for the lower court to follow.

First, immunity should extend to all actions that are within the “outer perimeter” of the president’s duties. In addition, a president’s motive could not be part of the consideration of whether an act was ‘offical" or “unofficial.” The court also emphasized that “testimony or private records of the President or his advisors” that were related to official conduct could not be used at trial to substantiate criminal charges for his unofficial conduct.

As a result of the opinion, the nation’s first federal criminal trial of a former president will not begin soon. Depending upon how long it takes Judge Chutkan to make the determinations about which aspects of the indictment are still subject to prosecution, it could very well be postponed until after the election.

And if Trump is reelected president, any trial would not occur until after he left office. He could also direct the Department of Justice to abandon the federal prosecution altogether.

Trump’s case was the first time the Supreme Court had been asked to determine whether and to what extent presidential immunity extended to criminal prosecutions of a former president.

In dissent, Justice Sonia Sotomayor, joined by fellow liberal Justices Elena Kagan and Ketanji Brown Jackson, rebuked the majority, writing that its decision created a “law free zone around the President.” Sotomayor asserted that the majority had ignored the text of the Constitution, misread history and precedent, and created an “atextual, ahistorical, and unjustifiable immunity that puts the President above the law.”

In a separate dissent, Jackson argued that the court had invented a new form of legal accountability, under which the president – and only the president – was exempt from the criminal law. In her view, a future president who ordered the assassination of a political rival would have at least a “fair shot” at avoiding any prosecution.

It remains at least somewhat unclear how the ruling will affect future presidents. If this case against Trump is indeed, as the government has argued, a “once-in-history prosecution,” then the court may never again be asked to determine how the criminal law applies to the nation’s chief executive.

If, however, the court’s decision frees future presidents to act in corrupt, even criminal ways, then the “rule for the ages” articulated in this opinion will have a major impact upon the separation of powers among the three branches of government, potentially giving far more power to the president than has been the case throughout American history. That will have huge implications for the functioning of the presidency and the stability, if not existence, of American democracy.

This article is republished from The Conversation, a nonprofit, independent news organization bringing you facts and trustworthy analysis to help you make sense of our complex world. It was written by: Claire B. Wofford, College of Charleston

In March 2024, I donated $25 to the Biden Victory Fund.