The Supreme Court on Monday ruled that former presidents are entitled to immunity from federal prosecution for official acts, a landmark decision that has major ramifications for former President Donald Trump. The ruling primarily addressed special counsel Jack Smith’s case against Trump in Washington, D.C. The court’s 6-3 decision made specific determinations about what conduct alleged in Smith’s indictment cannot be brought to trial, but left much of the decision-making to U.S. District Court Judge Tanya Chutkan, who is overseeing the case. Chutkan will need to decide whether much of the alleged conduct in the indictment was “official” or “unofficial” in nature.
Trump faces a second federal case in Florida related to classified documents, and state charges in Georgia dealing with the 2020 election. He was also convicted on state charges in New York in May and faces sentencing next week. The court did not address those cases in its decision, and the potential impact on each is less clear. Trump has pleaded not guilty to all charges.
The Supreme Court declined to dismiss the entirety of Smith’s case against Trump in Washington, where he is charged with four counts stemming from his conduct after the 2020 election. Instead, the six conservative justices decided to send the case back to Chutkan’s court and instructed her to review the indictment under the legal standard they established. This will likely result in more hearings and legal briefs on each of the issues, followed by likely appeals that will further delay the start of the trial. The case has been on hold for months as the immunity issue weaved its way through the courts.
Writing for the majority, Chief Justice John Roberts divided presidential conduct into three categories: official acts that are part of presidents’ “core constitutional powers”; other official acts that are outside their “exclusive authority”; and unofficial acts. Presidents have “absolute” immunity for the first category, “presumptive” immunity for the second, and no immunity for the third. Roberts wrote that the allegations in the indictment that accused Trump of working with Justice Department officials to push for investigations into certain state election results are off the table because they fall squarely under the umbrella of “official acts.”
“The indictment’s allegations that the requested investigations were ‘sham[s]’ or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials,” Roberts wrote, essentially blocking Smith from introducing the allegations at trial.
As for prosecutors’ contentions that Trump pressured then-Vice President Mike Pence to delay the certification of the Electoral College votes on Jan. 6, 2021, as Pence presided over the joint session of Congress, Roberts and the majority ruled Trump is “presumed” to have immunity and raised the bar for using evidence tied to that conduct at trial. The special counsel will now likely have to “rebut the presumption of immunity” to show that Trump is not entitled to legal protection.
The court wrote that Pence was acting at least in part as president of the Senate on Jan. 6, not solely as a member of the Trump administration. As a result, Smith “may argue that consideration of the President’s communications with the Vice President concerning the certification proceeding does not pose ‘dangers of intrusion on the authority and functions of the Executive Branch,” the decision said. The high court placed the burden on Smith to prove that prosecuting Trump for allegedly pressuring Pence would not “pose any dangers of intrusion on the authority and functions of the Executive Branch.” Chutkan will then have to make a determination on the matter.
The majority also pointed to “a broad range of conduct” that the lower court will have to examine, including Smith’s claims that Trump worked with state officials, private attorneys, and his supporters outside the Capitol to subvert the transfer of presidential power. For example, Smith charged Trump with pressuring Georgia election officials to “find votes” and said the former president and his allies tried to organize false slates of presidential electors. That conduct occupies a gray area that “cannot be neatly categorized as falling within a particular Presidential function,” Roberts wrote Monday.
According to the opinion, each allegedly criminal act as described in the indictment is “fact-specific” and requires further briefing with the lower court. Chutkan will have to decide “whether Trump’s conduct in this area qualifies as official or unofficial.” The justices offered her a roadmap to weigh the conduct against the risk of “enfeebling” presidential power when deciding the issues. Under the application of the new standard set by the high court, each argument at the trial court level will require numerous written briefs and even some oral arguments. In some circumstances, even after Chutkan rules, her decisions are likely to be appealed to higher courts for review.
The same process is likely to play out with regard to Trump’s public comments and social media posts leading up to and during the Jan. 6 attack on the Capitol. Roberts wrote that while “most” public comments “are likely to fall comfortably within the outer perimeter of his official responsibilities,” a contextual analysis could prove otherwise in certain circumstances.
Trump called the ruling a victory. The special counsel declined to comment on the decision.
The other federal case brought against Trump by Smith involves his alleged mishandling of sensitive government records after leaving the White House in January 2021. Like in the D.C. case, Trump has argued that the charges should be tossed out on the grounds that he is entitled to sweeping immunity from prosecution. He pleaded not guilty to charges he willfully retained national defense information and obstructed the Justice Department’s investigation into his handling of documents bearing classification markings.
U.S. District Judge Aileen Cannon in Florida has not yet ruled on Trump’s claims of presidential immunity. While it’s not immediately clear how that case will be impacted, the former president’s lawyers and Smith’s team will likely submit additional filings to Cannon arguing their position is bolstered by the decision. The special counsel has argued that the conduct alleged in the indictment — namely that Trump illegally retained national defense information — occurred after he left office, and therefore he is not entitled to legal protection.
But the former president has argued that he declassified the records at issue before leaving office. There are 32 separate documents that underlie the charges, and Trump could claim the broad power to declassify records is within a president’s official duties. Trump has also claimed that he deemed the documents marked classified as personal and therefore could bring them with him after leaving office.
Notably, in a separate concurring decision on Monday, Justice Clarence Thomas waded into another legal argument currently pending before Cannon’s court: whether Smith’s appointment as special prosecutor was legal. Trump has argued in various court hearings and filings that Smith’s appointment was unlawful since he was neither appointed by the president nor approved by the Senate. The Justice Department has defended Attorney General Merrick Garland’s decision to name Smith as special counsel, arguing legal and historical precedent supported the move.
Cannon has yet to rule on the matter. In his opinion on Monday, Thomas said he wrote to “highlight another way in which this prosecution may violate our constitutional structure.” The justice questioned whether Smith’s office was “established by Law” and wrote that further examination of the appointment should proceed before trial in the D.C. case. “If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people,” Thomas wrote. “The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding.” Although his opinion was not binding, and no other justices signed onto his concurring opinion, Thomas’ arguments have the potential to affect Cannon’s ruling on the legality of Smith’s appointment in the classified documents case.
In Fulton County, Georgia, prosecutors alleged that Trump and several of his allies engaged in a scheme to overturn the results of the 2020 election. Much of the conduct alleged in the indictment returned by a Fulton County grand jury is similar to what Smith has accused Trump of doing. Trump has pleaded not guilty to all charges brought against him in Georgia. As in the federal prosecutions, he has argued the indictment should be dismissed on the grounds he is entitled to presidential immunity. The Fulton County judge overseeing Trump’s case, Judge Scott McAfee, has not yet ruled on his bid to toss out the charges.
The case before the Supreme Court involved a federal prosecution, while the Fulton County case is a state prosecution. Still, it’s likely McAfee will revisit the conduct alleged in the indictment and determine what actions are considered official or unofficial. Some of the allegations in the federal indictment, cited by the Supreme Court, include Trump’s interactions with people outside the Executive Branch, such as state officials, private parties, and the public. The high court said it is now up to the federal district court overseeing Trump’s case to determine whether that conduct qualifies as official or unofficial.
In Georgia, prosecutors have pointed to his conversation with Secretary of State Brad Raffensperger and other high-ranking state officials to support their claim that he unlawfully plotted to overturn the election results, as well as his attempt to organize false slates of presidential electors to obstruct the certification of state electoral votes. Expect to see McAfee probe those actions and make a similar determination as to whether they qualify as official or unofficial conduct.
The one criminal case against Trump to go to trial ended on May 30 with a conviction. A unanimous Manhattan jury concluded Trump was guilty of 34 felony counts of falsifying business records in an effort to cover up reimbursements for a “hush money” payment to an adult film star. Trump signed off on falsifying the records while he was in the White House in 2017. The issue of whether the allegations in that case relate to official acts was litigated as part of an effort by Trump to move the case from state to federal jurisdiction.
After the Supreme Court’s landmark ruling Monday, Trump tried to leverage the decision to overturn his conviction in New York. A letter filed to the judge presiding over the case was not yet public as of Monday evening. A spokesperson for Manhattan District Attorney Alvin Bragg declined to comment when asked about Trump’s latest move, which was first reported by The New York Times.
In 2023, Trump and his legal team argued that the allegations involved official acts within the color of his presidential duties, and said a federal court was therefore the proper venue for a trial. That argument was rejected by a federal judge who wrote that Trump failed to show that his conduct was “for or relating to any act performed by or for the President under color of the official acts of a president.” “The evidence overwhelmingly suggests that the matter was purely a personal item of the president — a cover-up of an embarrassing event,” U.S. District Judge Alvin Hellerstein wrote. “Hush money paid to an adult film star is not related to a president’s official acts. It does not reflect in any way the color of the president’s official duties.” Trump initially appealed that decision, but later dropped it. His case went to trial in April, and soon after the jury’s unanimous decision finding him guilty, Trump vowed to appeal the conviction. Trump is scheduled to be sentenced July 11. Prosecutors were expected to file a sentencing recommendation Monday. That filing has not been made public.
More than two months after hearing oral arguments, the Supreme Court on Monday partially backed former President Donald Trump’s claim that he is immune from criminal prosecution for actions he took while in office. In a 6-3 decision split along ideological lines, the Supreme Court ruled former Presidents are largely immune from prosecution for official acts, but not actions they took in office that aren’t part of their job responsibilities—a decision that will have significant consequences for Trump’s remaining criminal cases and the future of the American presidency.
“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,” the majority opinion written by Chief Justice John Roberts says. “That immunity applies equally to all occupants of the Oval Office.”
The landmark decision marks the first time the Supreme Court has weighed in on whether a president can be prosecuted for actions they took while in office. The decision doesn’t dismiss the criminal cases against Trump, but sends certain elements of the federal election interference indictment back to a lower court to review which conduct is protected and immune from prosecution. “The President enjoys no immunity for his unofficial acts, and not everything the President does is official,” the ruling reads.
The Supreme Court offered some specific guidance on the conduct at issue in the criminal case brought by special counsel Jack Smith against Trump over his alleged efforts to overturn the results of the 2020 election. Roberts wrote for the conservative majority that Trump is “absolutely immune” from prosecution for his alleged conduct relating to conversations with Justice Department officials about launching investigations into election fraud and potential fraudulent slates of electors. But the Supreme Court didn’t offer answers on other conduct alleged in Smith’s indictment, writing that further proceedings at the lower court level are needed to determine whether Trump can be prosecuted for his alleged attempt to pressure then-Vice President Mike Pence to reject the Electoral College vote, and his interactions with state officials, private people, and voters about election fraud and the violence on Jan. 6.
Sending these questions back to a lower court all but guarantees that Trump’s stalled federal trial in Washington, D.C will be delayed until after voters decide in November whether to return Trump to the White House. Trump celebrated the Supreme Court ruling on Monday, calling it a “big win for the Constitution and democracy” in a post on his social media. He also claimed that it should put an end to all four of his criminal cases, including the New York case for which he was already convicted, though legal experts are skeptical of that assertion.
“The President has just been placed above the law for his official conduct, but there remains the question of liability for unofficial acts,” says Norm Eisen, a senior fellow in governance studies at The Brookings Institution and former counsel to the Democrat-led House Judiciary Committee during Trump’s first impeachment.
The court’s three liberal Justices dissented, with Justice Sonia Sotomayor writing in an impassioned opinion that the ruling “makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.” She added that the Constitution “does not shield a former president from answering for criminal and treasonous acts” and warned that the ruling could have broad ramifications by protecting Presidents for a wide range of actions.
“The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution,” Sotomayor wrote. “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.”
In a separate dissenting opinion, Justice Ketanji Brown Jackson said the ruling “breaks new and dangerous ground” by allowing future Presidents to get a “fair shot” at immunity even if they admit to having ordered the assassinations of his political rivals or instigates a coup.
Roberts cautioned that the liberal members of the Court were engaging in “fear mongering,” claiming that it was not the Supreme Court’s job to sift through the evidence and decide what is and isn’t official conduct. “That analysis,” he wrote, “ultimately is best left to the lower courts to perform in the first instance.” The Chief Justice added that the dissenters “strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today” and that “like everyone else, the President is subject to prosecution in his unofficial capacity.”
It remains to be seen what the immunity ruling means for Trump’s criminal cases. U.S. District Judge Tanya Chutkan, who is overseeing the election interference case in Washington, D.C. case and was appointed by former President Barack Obama, must now sift through the allegations in the indictment to separate Trump’s official acts as President from private ones, when he was acting as a presidential candidate. Those acts include conversations Trump had with people outside the federal government, including Georgia Secretary of State Brad Raffensperger, who famously rejected Trump’s pressure to “find” enough votes to flip the state’s 2020 vote.
Roberts addressed Trump’s contacts with state officials, writing in the majority opinion that the President has “broad power to speak on matters of public concern” including the conduct of elections. But he also said that the president “plays no role” in certifying state election results, adding that Chutkan will need to conduct a “close analysis” to determine if those actions are protected.
Smith, who brought the charges against Trump, wrote to the Supreme Court that even if it finds that some level of immunity exists for official acts, a trial could still get underway focused on Trump’s private actions in the indictment. Trump’s “use of official power was merely an additional means of achieving a private aim—to perpetuate his term in office—that is prosecutable based on private conduct,” Smith told the Supreme Court. Trump’s own lawyer conceded in the oral argument that some of the allegations in the indictment concern private conduct and would not be protected by the immunity defense.
Originally, Chutkan had set Trump’s trial in the Smith case to begin on March 4, but Trump’s appeal to the Supreme Court resulted in a delay in the proceedings, paving the way for his New York business records case to be the first to reach trial. Trump was found guilty and convicted on all 34 counts in that case and is set to be sentenced on July 11. Trump is also facing criminal cases in Florida and Georgia. If Trump is elected President again, he could order the Justice Department to dismiss the federal charges against him.
During oral arguments, Trump’s attorneys argued that a former President has absolute immunity from criminal prosecution for all official acts related to the presidency, claiming that they could only be criminally prosecuted if first impeached and convicted by Congress. The Supreme Court rejected that argument: “Transforming the political process of impeachment into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of the Nation’s Government,” Roberts wrote. Trump’s attorneys claimed that without blanket immunity, Presidents would not be able to function as Commander in Chief while worrying about potential criminal charges in the future. “Trump asserts a far broader immunity than the limited one the Court recognizes,” Roberts added.
Lower courts had already rejected that argument, including a unanimous three-judge panel on an appeals court in Washington, D.C. But Justice Samuel Alito noted during oral arguments that Presidents are in a “peculiarly precarious position” given the high-stakes decisions they have to make and enormous amount of power they wield. “This case will have effects that go far beyond this particular prosecution,” he said at arguments. Justices Brett Kavanaugh and Neil Gorsuch, two of Trump’s three high court appointees, both raised the specter of overzealous prosecutors targeting former Presidents after they leave office. “I’m not concerned about this case, but I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives,” Gorsuch said.
Claire Finkelstein, a law professor at the University of Pennsylvania, says that the case that could be most significantly impacted by the ruling—besides the Washington, D.C. case—is the one in Fulton County, Ga., where Trump and 14 of his allies have been criminally charged in a sprawling racketeering indictment. “This ruling has implications potentially for the Georgia case [in that] he can claim that he was just checking up on the Georgia elections… the ruling suggests that there’s no room left over for state courts to exercise judgment around whether or not he was in fact acting in his presidential or personal capacity,” she says. Trump could not drop the charges or pardon himself in the Georgia case,
