On July 1 the national news agency CNN published on line the following news story entitled “Takeaways from the Supreme Court’s historic decision Granting Donald Trump Immunity” written by CNN staff reporters John Fritze, Tierney Snedd and Devan Cole with CNN’s Katelyn Polantz contributing to the report. Following is an edited version of the report:
“[On July 1] The Supreme Court handed down a landmark decision .. granting Donald Trump partial immunity from special counsel Jack Smith’s election subversion case, handing the former president a significant win during his reelection bid. [You can read the entire Supreme Court decision here]:
Click to access 23-939_e2pg.pdf
Though the 6-3 ruling technically allows Smith to inch the prosecution toward resolution, the majority opinion from Chief Justice John Roberts left many technical questions unresolved – making it increasingly unlikely that a trial can get underway before the November election.
[Roberts wrote for the conservative majority:]
“The President is not above the law. … 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. … A president inclined to take one course of action based on the public interest may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office. … But Congress may not criminalize the president’s conduct in carrying out the responsibilities of the executive branch under the Constitution.”
Smith’s case now returns to lower courts, which must review the specific steps Trump took to overturn the results of the 2020 election and whether those actions were official, and therefore receive immunity, or private, and do not.
Here’s a look at the key takeaways from a historic decision:
TRUMP GOT A BIGGER WIN THAN EXPECTED
In several key respects, Trump got what he wanted from the 6-3 court – and more.
For starters, the Supreme Court ruled that for “core” presidential activity, Trump has the absolute immunity he had sought. The majority said that Trump’s conversations with the Justice Department – his efforts to try to get officials on board with his effort to overturn the election – were covered with absolute immunity.
For other official actions and more routine powers held by the president, the court said there is at least some immunity and it largely deferred to lower courts to sort that out. That’s a process that could take weeks or even months.
The analysis about what’s immune and what isn’t “ultimately is best left to the lower courts to perform,” Roberts wrote.
Perhaps even more important, the majority made clear that official acts cannot be considered at all as evidence in a potential trial, which could make it much harder for Smith to prevail.
Roberts also wrote that the lower courts may not consider a former president’s motive, which may allow Trump’s attorneys to argue that the he wasn’t attempting to overturn an election in his favor at all.
“The opinion found Trump is “absolutely immune” from prosecution for alleged conduct involving discussions with the Justice Department. Trump is also “at least presumptively immune” from allegations that he tried to pressure Vice President Mike Pence to reject certification of Democrat Joe Biden’s electoral vote win on Jan. 6, 2021. Prosecutors can try to make the case that Trump’s pressure on Pence still can be part of the case against him, Roberts wrote.
The court directed a fact-finding analysis on one of the more striking allegations in the indictment — that Trump participated in a scheme to enlist fake electors in battleground states won by Biden who would falsely assert that Trump had won. Both sides had dramatically different interpretations as to whether that effort could be construed as official, and the conservative justices said determining which side is correct would require additional analysis at the trial court level.
Roberts’ opinion further restricted prosecutors by prohibiting them from using any official acts as evidence in trying to prove a president’s unofficial actions violated the law. One example not relevant to this case but which came up in arguments was the hypothetical payment of a bribe in return for an ambassadorial appointment.”
WHAT’S NEXT IN THE FEDERAL CASE AGAINST TRUMP?
With the justices giving the lower courts some limited guidance, the next steps are likely to be more hearings, written arguments and even proceedings with witness testimony and debates over evidence before US District Judge Tanya Chutkan in Washington, DC.
Those are likely to come in the days after the Supreme Court hands the opinion down formally to the federal courts in DC. The mechanism for sending a case back down usually takes about as long as a month, but the high court could act more quickly.
Once Chutkan works through the legal issues, it’s possible that more appeals of her preliminary decisions could put the case on hold again – adding in significant delay.
LIBERALS TEAR INTO MAJORITY FOR CREATING ‘A KING ABOVE THE LAW’
The court’s three liberal justices pulled no punches, with two written dissents excoriating the majority opinion as an appalling affront to the nation’s long-held principle that no one is above the law.
That principle, Justice Sonia Sotomayor wrote, was washed away by a ruling that means that in “every use of official power, the President is now a king above the law.”
Joined in full by the court’s two other liberal members, Sotomayor, the court’s senior liberal, wrote that the majority was relying on “misguided wisdom” to give Trump “all the immunity he asked for and more.” Justice Sonia Sotomayor said the decision “makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. … [The majority relied on] little more than its own misguided wisdom about the need for `bold and unhesitating action … [giving a president] all the immunity he asked for and more.”
The ruling, she wrote, would allow a president to order SEAL Team 6 to assassinate a political rival, organize a military coup to hold onto power or accept a bribe in exchange for a pardon.
“With fear for our democracy, I dissent” Sotomayor wrote.
Sotomayor was especially critical of the decision to not allow prosecutors to use anything done by Trump that is shielded by immunity as they try to convince a jury to convict him over unofficial acts.
“That holding is nonsensical” the justice wrote at the end of her 30-page dissent.
Sotomayor went on to list “nightmare scenarios” involving illegal conduct by a future president that would, she argued, be shielded from criminal prosecution under the court’s ruling.
“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,” she wrote.
Sotomayor took the rare step of reading her dissent from the bench … in a move that underscored how aggrieved the liberal bloc of the court is. … .
Justice Ketanji Brown Jackson penned a solo dissent in which the court’s newest member said the majority ruling “breaks new and dangerous ground” by granting immunity “only to the most powerful official in our government.” While Justice Ketanji Brown Jackson “agreed with every word” of Sotomayor’s powerful dissent, she wrote a separate opinion to add her own admonishment. She said the nation has “lost a substantial check on presidents who would use their official powers to commit crimes with impunity while in office. … The majority of my colleagues seems to have put their trust in our Court’s ability to prevent Presidents from becoming Kings through case-by-case application of the indeterminate standards of their new Presidential accountability paradigm. … I fear that they are wrong. But, for all our sakes, I hope that they are right.”
TRUMP’S NOMINEE BARRETT PUSHES FOR A SWIFT TRIAL
Justice Amy Coney Barrett, Trump’s last appointee to the high court before leaving office, expressed frustration with how the court was sending the case back to lower courts for more proceedings and more delay in a short concurrence that failed to gain support from any of her colleagues.
In a significant break from the court’s other conservatives, Barrett seemed to suggest Trump should go to trial quickly.
“I would have framed the underlying legal issues differently,” Barrett said.
She suggested that because Trump’s wholesale challenge to the indictment had failed, at least some of the case could go forward.
The conservative justice wrote that “a President facing prosecution may challenge the constitutionality of a criminal statute as applied to official acts alleged in the indictment.”
“If that challenge fails, however, he must stand trial,” Barrett wrote.
The justice took issue with how the court had ruled that evidence from Trump’s official acts should be excluded from the trial, writing that there was no reason to depart from the “familiar and time-tested procedure” that would allow for such evidence to be included.
POSTERITY VS. TRUMP
There was a clear tension through the course of the case between justices who wanted to limit the decision to the facts surrounding Trump’s effort to overturn the election and the broader concerns about presidential immunity for all future presidents.
In the end, Roberts repeatedly framed the court’s decision as one made for posterity rather than any single president.
The immunity the court found, he wrote, “applies equally to all occupants of the Oval Office, regardless of politics, policy, or party.”
The immunity case, he wrote, “poses a question of lasting significance.” In answering that question, he said, “we cannot afford to fixate exclusively, or even primarily, on present exigencies.”
But given the timing, it was unlikely to be viewed that way by many Americans. The decision landed in the middle of a presidential election featuring the first former president ever convicted of a felony crime.
“On purely partisan lines, the Supreme Court today for the first time in history places presidents substantially above the law,” said David Cole, national legal director of the American Civil Liberties Union who has repeatedly argued before the justices. “The opinion also sits like a loaded weapon for Trump to abuse in the pursuit of criminal ends if he is reelected.”
JUSTICE CLARENCE THOMAS QUESTIONS THE CONSTITUTIONALITY OF SMITH’S APPOINTMENT
Conservative Justice Clarence Thomas added a concurrence to raise questions about whether Attorney General Merrick Garland violated the Constitution when he appointed Smith as special counsel.
Pushing the fringe legal theory about the legality of Smith’s appointment in 2022 has been part of Trump’s defense strategy in his classified documents criminal case in Florida, which also was brought by the special counsel. Trump’s attorneys have argued that Garland does not have legal authority to appoint someone as special counsel who hasn’t been confirmed by the Senate.
Thomas, too, appears to support that argument. Thomas wrote in his concurrence:
“And, there are serious questions whether the Attorney General has violated that structure by creating an office of the Special Counsel that has not been established by law. Those questions must be answered before this prosecution can proceed. … The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding.”
ONE LOSS FOR TRUMP: IMPEACHMENT ISN’T A LEGAL SHIELD
Trump has also argued that he should be immune from prosecution since he was previously impeached and acquitted by the Senate, therefore creating a double jeopardy situation.
But in one rare win for the special counsel, the court said that argument had no merit.
Addressing Trump’s claims, Roberts wrote that a president who evades impeachment for one reason or another, such as by resigning from office before an impeachment proceeding got underway, would “never be held accountable for his criminal acts.” Roberts wrote:
“Impeachment is a political process by which Congress can remove a president. Transforming that political process into a necessary step in the enforcement of criminal law finds little support in the text of the constitution or the structure of our government”
The link to the entire unedited CNN report with photos is here:
Click to access 23-939_e2pg.pdf
BIDEN AND TRUMP REACT TO RULING
Both President Joe Biden and former President Donald Trump and their campaigns were quick to react to the Supreme Court’s decision on presidential immunity. Not surprising, each used the ruling to fuel their respective campaigns.
Former President Donald Trump said this on his Truth Social page in all caps:
“BIG WIN FOR OUR CONSTITUTION AND DEMOCRACY.”
Trump’s federal election interference indictment will be sent back to a lower court for further investigation, reducing the possibility of the case heading to trial while he campaigns for reelection. Will Scharf, an attorney for Trump, said this:
“It will take a lot of the air out of the sails of this insane effort of prosecuting President Trump. … Any day he spends in a courtroom is a day that he’s not out holding rallies meeting with voters.”
Trump is also seeking to delay sentencing in his New York hush money trial, arguing that the immunity opinion could change the case.
https://www.fox10phoenix.com/news/trump-reacts-immunity-case-ruling
https://www.wbaltv.com/article/biden-trump-react-supreme-court-ruling-presidential-immunity/61482931
President Biden, speaking at the White House said this:
“There are no kings in America. Each, each of us is equal before the law. No one, no one is above the law, not even the president of the United States. (With) today’s Supreme Court decision on presidential immunity, that fundamentally changed. For all practical purposes, there are virtually no limits on what the president can do. It’s a fundamentally new principle and it’s a dangerous precedent because the power of the office will no longer be constrained by the law even including the supreme court of the United States. I know I will respect the limits of the presidential powers that I have had for 3 1/2 years. … The American people must decide if they want to entrust … the presidency to Donald Trump, now knowing that he’ll be even more emboldened to do whatever he pleases whenever he wants to do it.”
https://www.cnn.com/2024/07/01/politics/joe-biden-immunity-supreme-court/index.html
https://www.wbaltv.com/article/biden-trump-react-supreme-court-ruling-presidential-immunity/61482931
COMMENTARY AND ANALYSIS
With this landmark presidential immunity decision by the United States Supreme Court, the Trump 6 Supreme Court disciples of John G. Roberts, Jr., Clarence Thomas, Samuel A. Alito, Jr. Neil M. Gorsuch, Brett M. Kavanaugh, Amy Coney Barrett continue do whatever they can to ensure his election over President Joe Biden and that his criminal trials are delayed. The 6 do so at the expense of our democracy and our criminal justice system. All six know full well that no on is above the law, yet they have now carved out an exception to benefit Donald Trump. They know if the two federal criminal cases proceed to trial after the election, and he is elected, he will order the Justice Department to simply dismiss the cases or simply pardon himself.
The 6 appointed Republican Justices have already made a profound difference with their right wing Republican Judicial Activism. The 6 Republican United State Supreme Court Justices have issued 6 major decisions that confirm it has become a far right wing activist court. The 1st was the court’s seriously considering an attempt to empower legislatures with exclusive authority to redraw congressional districts without court intervention. The 2nd struct down decades of affirmative action in college admissions. The 3rd ruled that a Christian business owners can discriminate and withhold services to the LGBTQ+ community based on religious grounds. The 4th invalidated President Joe Biden’s student loan debt relief plan. The 5th strips federal government agencies of all regulatory power and mandates court approval of rules and regulations. The 6th and most controversial is the Supreme Court reversing Roe v. Wade and 50 years of precedent and denying a woman’s right to choose an abortion and leaving it up to the state’s.
As the saying goes, elections have consequences. The 2024 presidential election is again shaping up to be one of the most consequential elections in our history where Supreme Court decisions will be on the ballot as well as the control of congress, not to mention our basic right to vote in an election and the Presidency.
A story has been told and retold about founding father Benjamin Franklin. Franklin was walking out of Independence Hall after the Constitutional Convention in 1787, when someone shouted out, “Doctor, what have we got? A republic or a monarchy?” To which Franklin supposedly responded, “A republic, if you can keep it.”
What we have now is a Republican “politcal judicial monarchy” consisting of 6 conservative Republican Justices all dressed up in their black ropes with gavels replacing scepters and a courtroom replacing a royal thrown room as they render their decrees of justice to carry out the will of Der Führer Trump and his Trump Republican Party.
The link to a related blog article on the United States Supreme Court is here: