Donald Trump gestures to supporters after telling them to march on the US Capitol to “Stop the Steal”, January 6, 2021 (Jim Bourg/Reuters)

In a 6-3 decision, the US Supreme Court has granted Donald Trump limited — but not absolute — immunity over his attempt to overturn the 2020 Presidential election and his instigation of the Capitol Attack of January 6, 2021.

The Court heard the Trump camp’s attempt to throw out the Federal case of Special Prosecutor Jack Smith. Trump is charged with four felony counts of conspiring to defraud the government and disenfranchise voters, and of corruptly obstructing an official proceeding.

All six conservative Justices — three of them appointed by Trump — made up the majority. The three moderate Justices dissented.

The conservative judges declared, “The nature of Presidential power entitles a former President to absolute immunity
from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts.”

However, they concluded, “There is no immunity for unofficial acts.

4 of 5 Sections of Federal Indictment Remain

The effect of the decision is to strike down one of the five sections of Smith’s indictment: Trump’s attempt to bully the Justice Department into finding “fraud” in the 2020 election.

In December 2020, Attorney General William Barr — who had previously protected Trump, including over the co-operation with Russia in the 2016 Presidential cmapaign — resigned rather than carrying out Trump’s demand. Barr said the allegations of fraud were “bullshit”.

Trump then put pressure on Acting Attorney General Jeffrey Rosen to find the “fraud”. When Rosen would not, Trump unsuccessfully schemed to install Assistant Attorney General Jeffrey Clark, an election denier.

The conservative Justices said interactions with the Justice Department officials fall under the remit of a President’s official duties. Therefore, Trump cannot be prosecuted over them.

The other four sections of the indictment have been remanded to US District Court for consideration as to whether prosecution can proceed. They are:

  • “Knowingly false claims of election fraud to get state
    legislators and election officials to…change electoral votes” from Joe Biden to Trump;
  • Organization of “fraudulent slates of electors in seven targeted states”, who sent “false certificates to the Vice President and other government officials to be counted at the certification proceeding on January 6”, when Congress confirmed Biden’s victory in the Electoral College;
  • Pressure on Vice President Mike Pence to” use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results”
  • On January 6, repetition to supporters of the false claims of election fraud, declarations that Pence “had the authority to and
    might alter the election results”, and direction of them “to the
    Capitol to obstruct the certification proceeding”.

The ruling falls short of giving Trump the immunity from prosecution which he has long sought. It has no impact on State cases, including his recent conviction on 34 felony counts over his payoff to adult film star Stormy Daniels just before the 2016 election.

However, it is likely to cause further delay to Smith’s prosecution, as the District Court considers which parts of the indictment can be maintained. That could rule out any trial before November’s election.

The majority may also have crippled the prosecution with a provision which could prevent evidence of Trump’s misconduct being presented in court:

Testimony or private records of the President or his advisors probing such conduct may not be admitted as evidence at trial.

Another Federal case, involving Trump’s alleged theft of classified documents, has been repeatedly delayed by the ruling of Judge Aileen Cannon, a Trump appointee.

Dissent: “Let The President Violate The Law” With Impunity

In a scathing dissent, joined by fellow moderates Elena Kagan and Ketanji Brown Jackson, Justice Sonia Sotomayor wrote of the risk of unlimited power — and impunity to break the law — enabled by the majority:

The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law….

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, the Court gives former President Trump all the immunity he asked for and more…..

The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military dissenting coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune. Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today….

Justice Jackson added:

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 under the majority’s new Presidential accountability model.