Bribes, assassination and pardons: Immunity ruling leaves questions on unchecked presidential power
The breadth of Monday’s Supreme Court decision largely shields former President Trump from criminal prosecution, while raising questions about the extent future presidents can take actions that would go unchecked by the courts.
The ruling doesn’t just limit how Trump can be prosecuted for his actions leading up to Jan. 6, 2021. It further undercuts special counsel Jack Smith’s case by restricting what presidential actions can even be considered evidence in a prosecution. It’s a factor sure to be raised in Trump’s other ongoing cases.
And it also raises questions over what future lawless conduct or abuse of power might be beyond the reach of prosecutors or the courts, including dire hypotheticals over whether Trump could order the assassination of his political opponents.
“The court gives former President Trump all the immunity he asked for and more,” Justice Sonia Sotomayor wrote in a blistering dissent that said the president can now use the office for “evil ends.”
In its Monday decision, the high court determined presidents have immunity for core official actions they take while in office; while for all other official acts presidents are “at least presumptively” immune.
Neil Eggleston, who served as White House counsel to former President Obama, said the decision appears to condone an extreme example cited during arguments: whether the president could order SEAL Team 6 to take out a rival.
“That was the hypothetical that people thought would cause the court to think it couldn’t possibly go that far,” he said.
“I think they did. … It seems to me that issuing orders to the military is like the core function of the commander in chief power. So I’m just not sure how that’s not exempt.”
The decision ultimately kicks Trump’s case back to the district court to tease out which of his actions leading up to Jan. 6 would be considered an official act.
But some of his conduct specifically condoned by the ruling makes clear that the court sees most any action with roots in a president’s role as protected from prosecution.
Trump’s pressure campaign at the Department of Justice — contact that threatened to upheave its leadership to install an attorney general who desired to launch an investigation into Trump’s baseless claims of election fraud — was deemed outreach by the court and “absolutely immune.”
Chief Justice John Roberts wrote that “discussions” like those were permitted, as presidents “have ‘unrestricted power to remove the most important of his subordinates’” and “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials.”
To the court’s liberals, that grants presidents immunity when they abuse their power — even in the most extreme hypotheticals raised during arguments.
“When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. 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,” Sotomayor wrote.
In a concurring dissent, Justice Ketanji Brown Jackson likewise fixated on a president’s ability to carry out murders.
“While the President may have the authority to decide to remove the Attorney General, for example, the question here is whether the President has the option to remove the Attorney General by, say, poisoning him to death,” she wrote.
“Put another way, the issue here is not whether the President has exclusive removal power, but whether a generally applicable criminal law prohibiting murder can restrict how the President exercises that authority.”
Eggleston said the ruling likewise seems to condone taking bribes for pardons or ambassadorships.
“The fact that core presidential functions are absolutely immune really does mean there are a lot of things the president does that he simply cannot be charged with, regardless of motive and intent and consequences,” he said.
“I just can’t imagine that the Framers actually thought that that conduct by a president would be appropriate.”
Other elements of the decision further complicate Smith’s path to bringing charges against Trump.
The opinion bars the use of evidence related to an official act from being used elsewhere in any potential criminal indictment.
In Trump’s case, that means his push at the Justice Department or anything else courts determine is an official act can’t be presented to the jury even to bolster the case on the remaining elements.
Justice Amy Coney Barrett, who joined the majority, suggested in a concurring opinion that the limitations on evidence went too far.
“The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable,” she wrote, going on to cite bribery as an example.
“Excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution.”
And in another section of the opinion, Roberts foreclosed courts from considering a president’s motive in seeking to determine whether conduct was official or unofficial.
That’s yet another complicating factor for Smith, who brought charges related to Jan. 6 that require demonstrating corrupt intent.
“They’re making it very difficult for the prosecution. And I don’t have a good answer to why they’re doing that, but it is going to become difficult for prosecutors to prove corrupt intent if they cannot delve into motive,” said Barbara McQuade, a former U.S. attorney.
McQuade said looking at motive could have been a good way to tease out conduct that should be immune, separating those done in good faith from those done for personal gain, nodding to Trump’s conversations with then-Vice President Mike Pence.
“Not looking to motive, I think, can make it very difficult to engage in the line-drawing they want to draw,” she said.
Lisa Rubin, an MSNBC legal analyst, offered another example.
“A president raids the home of a political rival because of their beef, not because of any legitimately suspected criminal activity? The beef is irrelevant legally,” she wrote on the social platform X.
Trump has made clear he sees the decision as a win — calling it a “high level SPANKING” for Smith — and as a pathway for unraveling his other cases.
The former president’s attorneys have already relied on the decision in challenging Trump’s guilty verdict in his Manhattan hush money case, penning a letter to Judge Juan Merchan on Monday evening asking him to set aside the verdict.
It’s unclear whether Monday’s decision will offer much basis for toppling that case. Some of the conduct weighed in the indictment happened before Trump was elected, and Trump also waived the immunity defense in court. Though the decision made clear private acts carry no immunity, Trump’s efforts could prompt further court consideration of whether his efforts to conceal an alleged affair fit the bill.
The immunity issue has, however, been raised by Trump both in his Georgia election interference case as well as his Mar-a-Lago documents case.
Trump has previously argued that he had designated the records in his home as personal records under the Presidential Records Act — a long-shot argument but one that could gain new traction with Judge Aileen Cannon after the immunity ruling.
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