When Special Counsel Jack Smith was tasked with securing an indictment against President Donald Trump for his conduct during and leading up to the insurrection on Jan. 6, 2021, he did not disappoint. However, the Supreme Court did, ruling 6-3 in Trump v. United States that Trump, and all presidents to come, could enjoy absolute immunity for their official acts as U.S. president.
Smith and his team laid out five charges against Trump and his co-conspirators.
First, that they falsely alleged voter fraud to convince state elections officials in Arizona, Georgia, Michigan, Pennsylvania and Wisconsin to change electoral votes from Biden to Trump.
Second, that Trump and his co-conspirators organized alternate slates of electors in the aforementioned five states plus Nevada and New Mexico, and had them transmit false election documents to be counted by the Vice President when certifying the election.
The third charge alleged that Trump and his co-conspirators tried to use the Department of Justice to conduct sham election fraud investigations and to send letters alleging fraud to targeted states. When the acting Attorney General refused to sign off on the plan, Trump threatened to immediately fire and replace him.
Fourth, that Trump urged Vice President Mike Pence to use his mostly ceremonial role in the election certification process to overturn the results, saying that he could return the ballots to state legislatures instead of certifying the Biden victory.
Finally, when all else failed, that Trump utilized the storming of the US Capitol as a reason to again allege fraud and to convince members of Congress to further delay certification. After using social media to draw supporters to Washington D.C., he told the crowd that former Vice President Mike Pence had the ability to return electoral ballots to states for recertification, thereby setting off the violent attack on our Capitol.
During oral arguments, Dean John Sauer — for Trump — argued that the president cannot do their job effectively if the threat of criminal prosecution is there after they leave office. Sauer also argued that allegations of private motivations can be made for every action taken by the president, so Sauer argued for removing the president’s motivations as a factor altogether.
Meanwhile, Micheal Drebben — for the U.S. — argued that while some core aspects of the president’s job remain unsanctionable, such as certain foreign policy choices and pardon power, scrutiny should be levied on presidential actions regardless. Drebben argued that given other legal safeguards in place, which include seeking the advice of the Attorney General and the need for federal grand jury-approved charges to eliminate unjust charges, serving the same functions of immunity but with a narrower scope.
In the end, the Court sided with Trump. The holding established, for unmistakably presidential actions, the president enjoys absolute immunity from prosecution.
Since the president has many responsibilities in his job description, unless the government can prove that an action isn’t done as part of his job, it will be presumed to be covered by immunity. Additionally, if the government wants to charge the president for an action that falls into this category, they need to prove that regulating said action won’t impede the president’s ability to do their job in the future.
And finally, for unofficial actions, the president gets no immunity.
Looking back to those five charges levied against Trump, the third charge — that he allegedly used the DOJ to conduct sham fraud investigations — falls under official actions the president is absolutely immune from. The other four were returned to lower courts for specifics. This seems underwhelming, but there was not a lot of specific fact-finding done in lower courts on these five charges, and the Supreme Court is the court of final review, not of first review.
For the first time in our history, the president’s actions were so out of line that this distinction had to be made.
And with that distinction, a new branch of presidential powers was born. Early on in oral arguments, Justice Sotomayor asked Sauer whether or not the president ordering the assassination of an allegedly corrupt political opponent was within their official duties, to which Sauer replied “it would depend … but we can see that could well be an official act.”
Any ruling where the answer to that question is anything other than “no” is a bad one. The six justices who ruled in favor of immunity feigned innocence, arguing that allowing a president to be above the law is better than the prospect of former presidents being prosecuted after leaving office for their less popular policy decisions.
Those justices are naïve. It is no longer outside the realm of possibility for such “slippery slope” kinds of hypotheticals to be made. To a president filling the three branches of government with allies, safeguards are ceremonial in this new age of presidential power.