WASHINGTON—By a party-line 6-3 vote—Republican-named justices for and Democratic-named justices against—the U.S. Supreme Court let Donald Trump get away with it. The majority proclaimed the former Republican president has immunity from federal indictments even after he left office.
Chief Justice John Roberts’s ruling may well hand this fall’s election to the felonious Trump, now once again the Republican nominee for the White House.
The decision certainly opens the door wider for the criminal corporate class, parts of which had been holding back their campaign cash—open, “dark money” or both—to see which way the justices ruled, to dump ever more dollars into Trump’s campaign coffers.
Trump may win the election even though he was convicted last month in New York—not federal—courts on 34 counts of hush money payments to porn stars in a cover-up of his crimes during his presidential campaign eight years ago. Those payments were both fudged on the Trump Organization’s corporate books and were illegal campaign contributions under New York law. State Justice Juan Merchan will sentence Trump on those counts on July 11.
It’s also even though Trump still faces a state trial in Atlanta on multiple racketeering and conspiracy counts for attempts to steal swing state Georgia’s electoral votes four years ago. That trial, too, has been stalled—by maneuvers by Trump’s lawyers to throw Fulton County (Atlanta) District Attorney Fani Willis out of the case and the courtroom.
But on the biggest cases of them all, dealing with Trump’s role in ordering, aiding, and abetting the Trumpite insurrection at the U.S. Capitol three and a half years ago, Trump walks away, thanks to the majority’s ruling. He also walks away on the case of the classified documents he stole and stored at his Florida vacation palace. His lawyers are already taking a “victory lap” for this ruling in statements and on social media.
That’s because even if the justices had ruled against Trump’s immunity claim, the very fact the court heard his immunity claim and then stalled on deciding it gave Trump a win by validating his delay-delay-delay tactics.
The delays played into Trump’s hands because they postponed the two lower federal court trials involving the insurrection from starting until, at best, just before Election Day. And if Trump wins the balloting, he can appoint toadies to the Justice Department who will dismiss those cases—and he’ll fire Special Counsel Jack Smith, who’s bringing them, too.
Leading the three dissenters, Justice Sonia Sotomayor was so angry that she deliberately omitted the traditional closing line, “Respectfully, I dissent.” Instead, she wrote, “With fear for our democracy, I dissent.”
“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,” a steaming Sotomayor said.
“Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. 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.
“Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”
Justices Elena Kagan and Ketanji Brown Jackson joined her.
Trump appointees tipped the balance
The six-justice Republican-named majority includes three whom Trump named—Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh—and two justices with deep ethical problems, Clarence Thomas and Samuel Alito. The Washington Post previously reported Justice Alito flew flags in front of his D.C.-area home and his vacation home indicating he supported Trump’s U.S. Capitol invaders. And Thomas’s spouse, Ginni, a right-wing lobbyist, actively advocated for the invaders.
“The government takes a broad view, contending the president enjoys no immunity from criminal prosecution for any action,” Roberts wrote for the majority. “On its view, as-applied challenges in the course of the trial suffice to protect” presidential interests which the Constitution assigns.
“Review of a district court’s decisions on such challenges should be deferred until after trial. But questions about whether the president may be held liable for particular actions, consistent with the separation of powers, must be addressed at the outset of a proceeding.
“Even if the president were ultimately not found liable for certain official actions, the possibility of an extended proceeding alone may render him ‘unduly cautious in the discharge of his official duties.’ The Constitution does not tolerate such impediments to ‘the effective functioning of government.’”
“When may a former president be prosecuted for official acts taken during his presidency?… 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.’”
Roberts left one loophole, but narrowed it, compared to past High Court rulings. “The president enjoys no immunity for his unofficial acts, and not everything the president does is official,” he wrote. The Chief Justice protested that “the president is not above the law,” even though the practical effect of the decision puts him in that exalted spot.
“But under our system of separated powers, the president may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts. That immunity applies equally to all occupants of the Oval Office.”
Legal experts pointed out how the court’s delay, even before its ruling, helped Trump.
“Every day the justices held their decision further delayed Trump’s federal January 6 trial, making it less and less likely voters will know whether a presidential candidate is guilty of crimes against our democracy before Election Day,” the Brennan Center for Justice wrote in an e-mail. “This extremist Supreme Court is broken.”
“Accepting a view of the outer limits of presidential authority that would sweep in a conspiracy to overturn an election and remain in office unlawfully would have exceptionally broad implications and threaten severe damage to our constitutional democracy,” Public Citizen had said in its friend of the court brief.
“The Constitution does not silently prohibit holding a former president accountable to the law when he is alleged to have engaged in criminal violations aimed at overthrowing our constitutional form of government.” Except that’s the practical effect of Chief Justice Roberts’s ruling.
“Trump’s legal theory defies common sense and would enable an almost limitless tyranny. Nothing in the Constitution–which aims to prevent tyranny–supports Trump’s theory,” Public Citizen President Robert Weissman said then.
“The Supreme Court chooses the cases it hears,” Marc Elias, an attorney who specializes in voting rights and election law cases, tweeted. “They chose a case to make it harder to prosecute Jan. 6 insurrectionists. They chose a case to delay Trump’s trial. They chose a case to undermine expertise in government. They didn’t choose any cases to protect democracy.”
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