Former US president Donald Trump’s trial for federal election interference will almost certainly not proceed before the November presidential election, following the supreme court decision that former presidents are entitled to a degree of immunity.
The consequences of the decision are potentially boundless, with Justice Sonia Sotomayor, who was in the minority, writing that the decision has “shifted irrevocably” the relationship between the president and the American public.
“In every use of official power, the president is not a king above the law,” she wrote.
The contentious decision, handed down by chief justice John Roberts court on Monday, found that “former presidents are entitled to absolute immunity from official acts but not from unofficial acts”.
While the finding is sufficiently broad to permit chief prosecutor Jack Smith to theoretically proceed with the prosecution of the charges against Trump, the supreme court has left it to the relevant district court, in this case the Washington DC court of Tanya Chutkan, to establish which of by the former president should be classified as “official” and which should be deemed “unofficial”.
Crucially, those determinations can then be appealed by Mr Trump’s legal counsel. The considerable length of time to prepare for and then hold that evidentiary hearing leaves theprospect of any trial before November logistically impossible. Should Mr Trump win a second term in office, he will have the liberty to wipe all charges against him. The Republican candidate welcomed the decision, through his social media account, as a “big win for our constitution and the democracy”.
The 118-page court document illuminated the ideological chasm dividing the current supreme court, three of whose nine justices were appointed by Mr Trump during his term in office. In her blistering dissent from the 6-3 majority finding, Justice Sotomayor, who was in the minority along with Justices Ketanji Brown Jackson and Elena Kagan, outlined what she perceived as the true import of the the court’s finding.
“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 he might 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. Orders the Navy Seals Team Six to assassinate a political rival? Immune. Organises a military coup to hold on to power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune. Immune. Immune. That is the majority’s message today,” she said.
In delivering his opinion, Chief Justice Roberts stated that the nature of presidential power requires that a former president have some immunity from criminal prosecution for official acts and that such immunity “must be absolute”.
In addition to the federal charges he faces for attempting to overturn the 2020 election result, Mr Trump also faces trial in Georgia for conspiracy to change the outcome of the election result in that state, and election interference and in Florida for illegally hoarding classified documents.
The supreme court’s decision on Monday has potential implications for both the Georgia and Florida cases, with complex arguments likely as to whether his actions fall under the official or unofficial umbrellas.
The decision arrives as the Democratic Party continues todeal with the fallout from last Thursday’s presidential debate, after which questions were raised about the ability of President Joe Biden to contest the election. There have been calls for Biden – at 81 three years older than Mr Trump – to withdraw from the race.
During that debate, Mr Trump mused that Mr Biden could face prosecution for decisions he has made while in office, a thinly-veiled threat that he could seek retribution if returned to power. Monday’s ruling negates that threat by bestowing immunity to former presidents.
Mr Trump is due to face sentencing for his conviction in the recent “hush money” case in New York. It is now possible that his legal team will seek to re-examine that case on the grounds that some of the testimony heard in that case related to exchanges which occurred when Mr Trump was serving as president.
