The Supreme Court of the United States considers that presidents have criminal immunity for acts carried out in the exercise of their office. In a ruling of great importance for the future legal proceedings of former President Donald Trump, the judges do not grant him absolute immunity, but partial immunity, related to official acts. The ruling comes just over four months before the elections in which Trump hopes to return to the White House and days after a televised debate that has raised doubts about the fitness of the current president, Joe Biden, his foreseeable rival at the polls on November 5.
“The nature of presidential power entitles a former president to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority; he is also entitled to at least presumptive immunity from prosecution for all official acts of his; “There is no immunity for unofficial acts,” says the Supreme Court in a ruling that represents a triumph for Trump. The Supreme Court annuls the rulings of the lower courts that denied immunity to Trump and asks them to decide according to the criteria that he now feels.
The ruling was passed with the six conservative justices voting in favor, including the three appointed by Trump himself. The three progressive judges voted against. In total, between the introduction, the ruling and the dissenting opinions, the ruling takes up 119 pages. “The president does not enjoy immunity for his unofficial acts, and not everything the president does is official. The president is not above the law. But Congress cannot criminalize the president’s conduct in carrying out the responsibilities of the executive branch under the Constitution. And the system of separation of powers designed by the Founding Fathers has always required a vigorous and independent executive. Therefore, the president cannot be prosecuted for exercising his principal constitutional powers, and he is entitled, at a minimum, to presumptive immunity from prosecution for all of his official acts,” says the ruling, written by the president of the Supreme Court, John Roberts. “That immunity applies equally to all occupants of the Oval Office, regardless of their politics or party,” it adds.
The case is being referred to the investigating judge. She will have to decide what were official acts and what were not, but the Supreme Court has already expressly ruled on some: it shields communications between Trump and his attorney general, which were part of the evidence of the attempts to rig the election. This weakens the accusation.
The case that has reached the Supreme Court is that of Washington, in which the prosecutor accused the former president of four alleged crimes for trying to alter the results of the 2020 presidential elections, which he lost to Joe Biden, and clinging to power by cheating and preventing the certification of that victory.
Trump’s first victory has been to delay the process, delaying the start of a trial initially scheduled for March 4. Now, it is almost impossible for him to be in the dock before the presidential elections on November 5. If he wins the election, he will also be able to order the indictment of federal crimes to be dropped or even grant himself a pardon.
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In parallel, another ruling from the Supreme Court itself has lowered the scope of the crime of obstruction of an official procedure. The four crimes for which the prosecutor charged Trump in Washington are: conspiracy to defraud the US Government, conspiracy to obstruct an official proceeding, obstruction or attempted obstruction of an official proceeding and conspiracy to violate civil rights. The second and third crimes correspond to the criminal figure that the Supreme Court disapproved and his decision complicates the success of these two accusations against Trump. The doctrine of the conservative majority of the Supreme Court has reduced this criminal offense to cases related to the destruction of evidence, documents, records, objects or other things used in an official procedure. Consider that it is not applicable to those who attacked the Capitol in Washington on January 6, 2021.
While this case was being heard in the Supreme Court, Trump has become the first former US president to be found guilty in a criminal trial. He is awaiting sentencing on July 11 after a jury found him guilty of 34 counts of falsifying checks, invoices and accounting records. He intended to conceal payments to porn actress Stormy Daniels and thus prevent the scandal of his relationship with her from breaking out in the middle of the 2016 presidential campaign. In that case, it was obvious that Trump was not carrying out an activity related to his office, so the sentence should not affect that conviction.
It is not so clear what the consequences are for the other processes that the former president has open: the one in Florida for the retention of secrets related to the defense and obstruction of justice, for the confidential documents that he took to his mansion in Mar-a -Lago, in which Trump also claimed immunity; and Georgia for its attempts to reverse his defeat in the 2020 presidential election against Joe Biden.
This is a historic case that can draw the contours of presidential power for the future. No president or former president has been indicted before Trump, so the Supreme Court had never ruled on the issue. “This case has enormous implications for the presidency, for the future of the presidency, for the future of the country,” Judge Brett Kavanaugh said at the oral hearing.
The Supreme Court’s judicial year has been marked by cases related to the former president. In addition to this Monday’s ruling on immunity and last Friday’s ruling on the crime of obstruction of an official procedure – in which Trump was not a direct party – there have been other cases that have touched him tangentially and a decision on whether He could be excluded from the ballots for having incited the assault on the Capitol. The justices unanimously concluded that he could run in the primaries—and by extension, the presidential elections—because a law of Congress would be required to be disqualified for insurrection.
Previous failures
Both the federal judge presiding over the case and the Court of Appeals to which Trump initially appealed flatly rejected his immunity. Judge Tanya Chutkan issued a harsh ruling in which she said that being president “does not confer a lifetime pass out of jail.” Trump’s lawyers appealed to the Washington Court of Appeals, which paralyzed the processing of the case, because what was at stake was the very essence of whether or not the former president could be charged and tried.
The Court of Appeals also rejected immunity with the unanimous vote of the three judges. “For the purposes of this criminal case, former President Trump has become Citizen Trump, with all the defenses of any other criminal defendant. But any executive immunity that might have protected him while serving as president no longer protects him against this charge,” the 57-page ruling said in its introduction. “It would be a striking paradox if the president, who has the ultimate constitutional duty to ensure faithful execution of the laws, were the only office holder capable of defying them with impunity,” the judges write in the grounds for the decision. “We cannot accept that the office of the presidency places its former occupants above the law forever,” it added in another of its sentences.
The judges looked back to the Watergate case to reject Trump’s claim to almost absolute immunity. “Recent historical evidence suggests that former presidents, including President Trump, have not believed themselves to be entirely immune from criminal liability for official acts during his presidency. “President Gerald Ford granted a full pardon to former President Richard Nixon, which both former presidents evidently believed was necessary to prevent Nixon’s impeachment following his resignation,” his ruling said.
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