Trump Gets Criminal Immunity For "Official" Acts as President, But Not for "Unofficial"

Donald Trump scores a win today — not total, but substantial.
Donald Trump scores a win today — not total, but substantial. Screenshot

Former President Donald Trump and all other former presidents have criminal immunity from prosecution for any official acts while they are in the White House, the U.S. Supreme Court ruled Monday, overturning the district and circuit courts that had said a president has no immunity for any criminal acts committed while in office.

In a 6-3 vote along partisan lines, the Supreme Court  did not grant Trump complete immunity — just for "official" acts — but did not explain what constitutes an unofficial act and sent the measure back to the district court to determine.

Most immediately, this means that this delays the prosecution of Trump in a Washington D.C. court on charges of him trying to subvert the 2020 election. It will have to be determined which of those actions were official and which unofficial. The Supreme Court ruled that any of his discussions with the Justice Department are protected by presidential immunity.

While Chief Justice John G. Roberts Jr. in writing the majority opinion stated that because Trump could be held accountable for unofficial acts showed that "no man is above the law," Justice Sonia Sotomayor writing her dissent said the ruling made a mockery of exactly that principle.

Emily Berman is a University of Houston professor who teaches constitutional law and she says the critical question not just for the public at large but for the courts themselves is distinguishing what is official and what is unofficial. "It is the critical distinction that the court makes here and yet at the same time they say there are going to be times when it is difficult to distinguish official acts from unofficial acts and those have to be taken on a fact by fact basis with a close scrutiny of the content, form and context of the act."

Courts judging context may be taking into consideration who scheduled an event: was it the White House or Trump's re-election campaign, she said. And any ruling, of course, can be appealed to a higher court.

"One of the examples they use are President Trump's tweets and speeches on January 6. They say, on the one hand the President's official duties require a lot of speaking to the public. At the same time it may be that at times he acts in an unofficial capacity as a candidate for office. So determining which of those labels to put on any particular act is going to depend on the specifics of that act," Berman said.

The district court will be asking for briefings from both sides about what is official or unofficial act. They're going to ask the parties to make the arguments. Whatever the DC district court rules would , of course, be subject to appeal.

"Telling your attorney general that you’re going to fire him if he doesn't send a letter lying about the presence of fraud election, if that’s an official act — which the Supreme Court in its opinion definitively says it is — it severely limits the basis on which the president can be held accountable criminally."

"There is no getting around the breadth of the immunity that this case confers because the president’s official duties are so far ranging."

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"There is no getting around the breadth of the immunity that this case confers because the president’s official duties are so far ranging."

The ruling does nothing to help the Supreme Court's rating that is lower than it has been at any other time, because of the perceived partisanship, she said. "It ‘s a real problem for the court. The Supreme Court does not have a police force. It  does not have an army. All of the power it has is because we agree to be  bound by what it says and when people start to think that they're not making decisions in good faith as a court should, then that sense of the institution's legitimacy starts to break down."

Berman said one is one of the reasons this matter hasn’t come up before "is really I think is what the constitution contemplated was impeachment. That was meant to be the accountability mechanism for a lawless president. And because of our party polarization the effectiveness of that tool has broken down. And then we have to fall back on the Justice Department and now our party polarization has gotten in the way.

Both Sotomayor and Justice Ketanji Brown Jackson wrote dissenting opinions.

"Usually when someone dissents they 'respectfully' dissent," Berman said. "In this case, both of the dissents, one from Sotomayor, one from Jackson, simply dissent. It may not seem like much, but in the Supreme Court world that is not an oversight. That is an intentional omission that speaks to the vehemence with which the dissenter feels their point."
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Margaret Downing is the editor-in-chief who oversees the Houston Press newsroom and its online publication. She frequently writes on a wide range of subjects.
Contact: Margaret Downing