The meaning of Donald Trump’s Supreme Court victory

IN DECEMBER JACK SMITH tried to get the Supreme Court to quickly take up the question of whether Donald Trump was immune from prosecution for allegedly attempting to subvert the results of the election in 2020. The charges, wrote the special counsel (an independent prosecutor appointed by the Department of Justice), “implicate a central tenet of our democracy”. The justices’ prompt resolution was necessary to “permit the trial to occur on an appropriate timetable”. He must have known it was a long shot.

The Supreme Court declined to step in early. But on July 1st, seven months after Mr Smith’s request and four months after the date that Judge Tanya Chutkan had initially set for the start of Mr Trump’s trial, the Supreme Court’s ruling arrived. Although the decision in Trump v United States does not give Mr Trump everything he asked for, it is a clear practical victory for the once and possibly future president. The charges against Mr Trump for allegedly trying to thwart his electoral loss in 2020 will almost certainly not proceed before the election in November—and maybe not ever.

Writing for the court’s six Republican appointees, Chief Justice John Roberts, who has written the opinions in all the law-of-Trump cases—from disputes over the Muslim travel ban to the citizenship question on the census—looked beyond the present tussle over Mr Trump’s actions. He framed the matter as a fundamental question about the “constitutional structure of separated powers”. The court must be mindful of preserving an “energetic, independent executive” sketched in Article II of the constitution. As Justice Neil Gorsuch put it in the oral argument on April 25th, the decision is “for the ages”—a ruling that will define the scope of presidential power far into the future.

So what did the court decide? The Department of Justice (DoJ) has long held that sitting presidents have immunity from prosecution. Trump v United States addresses what happens after they leave office. All “official acts” presidents undertake are entitled to at least presumptive immunity, while presidential acts relating to the core of their constitutional authority are “absolutely” shielded from prosecution. In other words, nothing a president does under his constitutional authority can come back to haunt him after he leaves office. And even when an act is on the “outer perimeter” of executive authority, courts should presume that the president is shielded from prosecution, too. Only truly “unofficial” (or private) conduct should expose an ex-president to possible legal trouble once he leaves office.

Of the deeds alleged in Mr Smith’s indictment, some are clearly off limits to prosecutors, the court held. Discussions with officials at the DoJ and with Jeffrey Rosen, Mr Trump’s acting attorney-general, are one example. Those conversations are protected and may not be the subject of criminal charges even though they were allegedly directed at trying to overturn the election results by opening an investigation into purported election fraud and sending letters to certain states, including Georgia, claiming the DoJ had “significant concerns” about the election.

Other matters in the indictment, the court said, such as allegations that Mr Trump pressed Mike Pence, his vice-president, to reject the electoral-college vote, are a grey area. Along with communications with “state officials and certain private parties”, as well as tweets and other messages to the public about the riot on January 6th, these acts are less clearly within the bounds of a president’s official conduct. They should be presumed protected but “present more difficult questions”, Chief Justice Roberts wrote, that should be sorted out by the lower courts.

In contrast to previous unanimous rulings on the bounds of presidential power—against Richard Nixon in 1974 and Bill Clinton in 1997—Trump v United States was an ideologically fractured, 6-3 decision. All six justices appointed by Republican presidents—including Mr Trump’s three picks—joined the majority. All three Democratic appointees dissented.

Justice Sonia Sotomayor, who wrote the main dissent (joined by Justices Ketanji Brown Jackson and Elena Kagan), accused the majority of inventing a new concept of post-presidential immunity “through brute force”. The reasoning for such a wide umbrella for presidents is “atextual, ahistorical, and unjustifiable”, she wrote, and portends “great harm to American institutions and Americans themselves”. Justice Sotomayor warned that Trump v United States “reshapes” the presidency, making “a mockery of the principle, foundational to our constitution and system of government, that no man is above the law”.

For Chief Justice Roberts, this is hyperbole. Justice Sotomayor’s dissent, along with a separate dissent from Justice Jackson, “strike a tone of chilling doom that is wholly disproportionate to what the court actually” did. Yet the chief offers no direct response to Justice Sotomayor’s charge that his ruling could empower presidents to commit crimes with impunity, from ordering “the Navy’s Seal Team 6 to assassinate a political rival” to plotting a “military coup to hold onto power”. Her analysis appears sound: official presidential acts cannot be the subject of evidence in a criminal trial, the majority holds, and courts can never “inquire into the president’s motives”.

Most of the dispute between the majority and the dissenters focused on assessments of the ruling’s long-run implications. But the immediate consequences are clear enough. Much of Mr Smith’s case against Mr Trump has been fizzled. What remains of it could potentially be revived after Judge Chutkan decides which charges involve unofficial (and thus prosecutable) acts. But with only four months to go before the election, there is little chance that Mr Smith will get to present that evidence to a jury in time. And if Mr Trump wins, he is sure to order his attorney-general to shut it all down. ■