Supreme Court, in Major Victory for Trump, Finds Former Presidents Are Entitled to ‘Presumptive Immunity’

The historic victory of President Trump at the Supreme Court on the issue of presidential immunity may not be absolute but it could yet prove enough to upend Special Counsel Jack Smith’s prosecution of him for working to overturn the results of the last presidential election. The high court, by an ideologically riven six to three margin, found that the “nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority.” A president is also entitled to “presumptive immunity” for all official acts. The justices held, though, that “there is no immunity for unofficial acts,” leaving Mr. Smith a path forward to try the 45th president. Litigation as to what acts in the special counsel’s indictment are “official” will constitute the next stage in the government’s effort to convict Trump.Those disputes will be heard at Judge Tanya Chutkan’s courtroom at the District of Columbia. It is to her that the high court remanded this case. The Supreme Court’s decision amounts to a repudiation of Judge Chutkan’s earlier decision holding that former presidents are not entitled to any immunity. That ruling was affirmed by riders of the United States Appeals Circuit for the District of Columbia Circuit. It is now overruled. Particularly damaging for Mr. Smith’s case is the high court’s finding that Trump’s urging of Vice President Pence “to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.” The government can rebut this presumption, but it will be an uphill climb, and Mr. Smith will shoulder the burden of proof. The justices, though, declined to decide whether Trump’s efforts “to convince certain state officials that election fraud had tainted the popular vote count in their States, and thus electoral votes for Trump’s opponent needed to be changed to electoral votes for Trump” amount to official or unofficial acts. That will be a high-stakes decision, and Judge Chutkan’s to make, at least initially.Judge Sonia Sotomayor penned a ferocious dissent for the court’s liberal wing. She writes that the ruling makes a “mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.” The justice reckons that “our Constitution does not shield a former President from answering for criminal and treasonous acts.” She likens this decision to one of the most notorious in American history — Korematsu v. United States, which upheld the internment of Japanese Americans during World War II.Justice Jackson, who writes that she agrees “with every word” of her colleague’s dissent, also composed her own to note that “even a hypothetical President who admits to having ordered the assassinations of his political rivals or critics, or one who indisputably instigates an unsuccessful coup has a fair shot at getting immunity.” She calls this “intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms.”A separate concurrence, authored by Justice Clarence Thomas, declares that “few things would threaten our constitutional order more than criminally prosecuting a former President for his official acts.” The court’s senior justice, though, ventures “another way in which this prosecution may violate our constitutional structure.” That arises not from the charges Trump faces, but who is doing the charging — Mr. Smith. Justice Thomas picks up an Appointments Clause challenge to the special counsel that is now before Judge Aileen Cannon in South Florida. The jurist writes that if there is “no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President.” Supreme Court precedent, though, suggests that such appointments have been supported.The majority’s ruling that “most of a president’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities” would seem to throw up a roadblock to Mr. Smith’s efforts to use Trump’s speech at the Ellipse on January 6 and his pronouncements on Twitter as bases for criminal activity. The court, though, did leave open the possibility that speech undertaken as a “candidate for office” could be outside the protections of immunity.Given the court’s expansion of presidential immunity, one moment from oral arguments, in April, could loom large. Justice Amy Coney Barrett, in conversation with Trump’s attorney, John Sauer, elicited from him the concession that the so-called “fake elector” scheme alleged by Mr. Smith consisted of exclusively private acts, meaning that it is not entitled to immunity. The court also responded to the critiques of Trump’s foes that it dallied in delivering its decision. The Chief Justice writes that “unlike the political branches and the public at large, the Court cannot afford to fixate exclusively, or even primarily, on present exigencies. Enduring separation of powers principles guide our decision in this case.”________This article has been updated from the bulldog.

Supreme Court, in Major Victory for Trump, Finds Former Presidents Are Entitled to ‘Presumptive Immunity’

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