PHILADELPHIA (KYW Newsradio) — The Supreme Court on Monday released its ruling in Trump v. United States, stating that a former president has absolute immunity for official acts but not for unofficial acts, extending the delay in the Washington criminal case against Donald Trump on charges he plotted to overturn his 2020 presidential election loss and all but ending prospects he could be tried before the November election.
“The Supreme Court for the first time held that future presidents do not need to worry about criminal liability for their official acts, not when they’re president, not after they’re president — not ever,” said Craig Green, a professor at Temple University’s Beasley School of Law.
So, which of Donald Trump's actions in special counsel Jack Smith's indictment are official and which are unofficial? A lower court now must decide.
What makes an 'official act' official?
Chief Justice John Roberts wrote the majority opinion, and every conservative justice, including the three appointed by Trump, sided with him in the historic 6-3 decision.
“He basically said that the president, in order to do his job, needs to have immunity from [prosecution of] what would be official acts,” said Loyola law professor and David W. Burcham Chair in Ethical Advocacy Laurie Levenson.
“Under our constitutional structure of separated powers, the nature of presidential power entitles a former president to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority," Roberts wrote. “And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.”
So, what is an “official act”?
“We're not quite sure,” said Levenson. “It's something that's either defined by his statutory duties or something that the president is called upon to do, like being commander in chief. But there is a presumption that whatever the president does is going to be one of these ‘official acts,’ and the burden is going to be on a prosecutor, like Jack Smith, to show that it's an unofficial or private act.”
Green said the majority refused to say anything about almost all of the allegations.
“The only thing they say for sure is communicating with the Department of Justice is 100% official,” says Green.
The justices, for instance, wiped out Smith’s use of allegations that Trump tried to use the investigative power of the Justice Department to undo the 2020 election results even though officials told him they had uncovered no evidence of pervasive fraud.
“Every other thing: talking to private individuals, talking to state officials, talking on Jan. 6 — all of those things have to be decided by the District Court,” says Green.
That includes Trump talking to state election officials after the election, telling Vice President Mike Pence to reject Electoral College votes on Jan. 6, 2020, and his social media posts and the speech he delivered to supporters in the run-up to the riot at the U.S. Capitol. The Court has left it open for U.S. District Judge Tanya Chutkan, the lower court judge, to decide if these and other actions are official or unofficial acts.
'A king above the law'
Roberts insisted that the president “is not above the law." But in a fiery dissent for the court's three liberals, Justice Sonia Sotomayor wrote, “In every use of official power, the President is now a king above the law.”
“She basically said, you know, this really means that we may see the end of the democracy as we know it,” said Levenson.
Particularly worrisome to Green and other critics of the decision is the presumption of immunity from prosecution.
“Presidents and former presidents can be immune from criminal prosecution for stealing things or killing people or defrauding people or accepting bribes or any of the other things that you think are criminal … for their whole lives. That’s what the Supreme Court said today — if those actions happen inside some bubble of ‘official acts,’ and the boundaries of that bubble are not defined,” said Green.
“I think the Supreme Court probably most honestly would say, ‘Nobody is above the law,’ kind of as the result of today’s ruling. Even the president is not above the law — except when he’s doing his official duties, I think, is the way the Supreme Court ruled today. And that is a first-time, unprecedented ruling. That’s what it is. And I think that for people who are concerned about criminal acts by presidents, I think it’s not a happy result.”
Will Trump stand trial?
If Trump is reelected before the case goes to trial, he will have the authority to tell the Justice Department to drop it, Levenson said. If the trial does not take place before the election, and Trump is not re-elected, he presumably would stand trial soon thereafter.
Before the Supreme Court got involved, a trial judge and a three-judge appellate panel had ruled unanimously that Trump could be prosecuted for actions undertaken while in the White House and in the run-up to Jan. 6.
“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” the appeals court wrote in February. “But any executive immunity that may have protected him while he served as president no longer protects him against this prosecution.”
Chutkan ruled against Trump’s immunity claim in December, saying the office of the president “does not confer a lifelong ‘get-out-of-jail-free’ pass.”
Trump’s trial had been scheduled to begin March 4, but the case has been on hold since December to allow Trump to pursue his appeal. Chutkan had indicated at that time she would likely give the two sides at least three months to get ready for trial once the case returns to her court.
That had left the door open to the case potentially going to trial before the election if the Supreme Court — like the lower courts — had ruled that Trump was not immune from prosecution.
But the Supreme Court's ruling that Chutkan must conduct further analysis is expected tie the case up for months with legal wrangling over whether the actions in the indictment were official or unofficial.
KYW Newsradio's Eric Walter contributed to this report.