Supreme Court Grants Trump Broad Immunity for Official Acts, Placing Presidents Above the Law

WASHINGTON — The Supreme Court today ruled that former President Trump is at least presumptively immune from criminal liability for his official acts, and is absolutely immune for some “core” of them — including his attempts to use the Justice Department to obstruct the results of the election. With respect to Trump’s other actions, the court left to the lower courts much of the work required to determine which are immune and which are not. At bottom, though, the court’s 6-3 majority freed presidents to use their official powers to engage in criminal acts substantially free of accountability.

The court granted absolute immunity to President Trump’s use of the Justice Department for fraudulent purposes. With respect to other allegations in the indictment, it sent the case back to the lower courts to determine whether actions for which former President Trump has been charged were official acts or personal acts, and whether the government can rebut the presumption that former President Trump is immune for those official acts. The court did reject former President Trump’s claim to absolute immunity for all acts unless convicted after an impeachment trial, characterizing its ruling as endorsing a “far broader immunity than the limited one” the court “recognized” today.

The American Civil Liberties Union and ACLU of the District of Columbia filed a friend-of-the-court brief arguing that the U.S. Constitution and decades of Supreme Court precedent support the principle that nobody is above the law — even the president. While the court found that a president’s actions as a private individual are not immune to criminal prosecution, it held that presidents do have substantial immunity for their official actions – even when undertaken for personal ends and criminal purposes.

“On purely partisan lines, the Supreme Court today for the first time in history places presidents substantially above the law. It ruled that former President Trump cannot be prosecuted for deploying Justice Department officials to pursue his own criminal ends. And with respect to other presidential actions, it announces ‘presumptive immunity,’ and offers only a vague and unworkable standard that is likely to mire the case against former President Trump in years of litigation without holding him accountable for his criminal conduct in resisting the peaceful transfer of power,” said ACLU National Legal Director David Cole. “The opinion also sits like a loaded weapon for Trump to abuse in the pursuit of criminal ends if he is reelected.”

While the court rejected President Trump’s most expansive and categorical claim of absolute immunity, it granted him substantial immunity for criminal conduct, including all crimes he committed by attempting to enlist Justice Department officials. And it leaves open many questions about when and for what conduct presidents will be immune from criminal prosecutions, in this case and into the future. The decision sets a dangerous precedent by giving presidents legal cover to break the law when even arguably using their formal powers to do it. And by concluding that former President Trump’s alleged directions to the Department of Justice are absolutely immune, and that his conversations with former Vice President Pence are presumptively immune, the court has not only obstructed accountability for Trump, but freed future presidents to act above the law when using their official powers.

The ACLU’s brief argued that while it has long been recognized that presidents cannot be prosecuted criminally in office, even presidents themselves have recognized that they can be prosecuted after leaving office. That is why President Gerald Ford deemed it necessary to pardon President Richard Nixon in 1974 following the Watergate scandal – a pardon that would have been unnecessary were Nixon immune from criminal prosecution.

“Our nation, including the District of Columbia, is governed by the rule of law, not kings,” said Monica Hopkins, executive director of the ACLU of the District of Columbia. “As we stated in our brief, there are few propositions more dangerous in a democracy than the notion that an elected head of state is above the law. Upholding the rule of law protects individual rights and prevents abuse of power by ensuring equal treatment and accountability. The Constitution does not give the President a special license to violate criminal law. Today’s ruling substantially undermines the ability to hold elected officials accountable and threatens longstanding principles undergirding our democracy.”

The ACLU’s brief warned that there are “few propositions more dangerous” in a democracy than the notion that an elected head of state is above the law, and urged the Supreme Court to reject this extraordinary assertion.

“The President’s accountability to the law is an integral part of the separation of powers and the rule of law. If the President is free, as counsel for the former President argued below, to order the assassination of his political opponents and escape all criminal accountability even after he leaves office, both of these fundamental principles of our system would have a fatal Achilles’ heel,” the brief reads.

The ACLU’s brief in Trump v. United States is part of the ACLU’s Joan and Irwin Jacobs Supreme Court Docket.

The Supreme Court’s decision is available here: https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf