In a landmark decision, the Supreme Court found presidents have absolute immunity for exercising their core constitutional powers and are entitled to a presumption of immunity for other official acts. The court also ruled that presidents do not have immunity for unofficial acts.
Former Deputy Assistant Attorney General Harry Litman said he was “horrified” by the opinion and added “It seems to me to restructure and reconfigure the whole relationship between the executive branch and the other branches.”
The team at NPR's Trump's Trials podcast broke down what this decision means and how it may affect Trump’s legal cases.
1. Core constitutional powers
The Supreme Court found that presidents have absolute immunity for “core constitutional powers.” This references certain powers given to the president in Article II of the Constitution, which includes being the commander in chief of the military, the ability to pardon individuals and appointing ambassadors and judges to the Supreme Court.
This means that even if the president does something that is considered illegal while exercising those core powers, he or she cannot be prosecuted for that action.
2. Official acts and presumption of immunity
The court also ruled that Trump “is entitled to at least presumptive immunity from prosecution for all his official acts.”
What is an official act? It’s the parts of the president’s job that don’t fall under Article II, like holding press conferences or speaking with foreign leaders.
Then there’s the presumption of immunity. The court is basically saying the president deserves the benefit of the doubt when it comes to immunity for official acts and, therefore, the bar is really high to prove otherwise. Litman said the path to overcome the presumption of immunity is unknown “because [the court] gave such sketchy guidance.”
What is known is that if an action is deemed “official,” DOJ special counsel Jack Smith, who is leading the cases against Trump over federal election interference and classified documents, will have to prove that prosecuting said conduct does not infringe on the “authority and functions of the executive branch.”
3. Unofficial acts
The court did say there are actions that can be prosecuted, they just have to be unrelated to the president’s official duties. This likely won’t be a cut-and-dried situation when it comes to parsing out which of Trump’s actions were official or unofficial. To make matters more complicated, Litman explained:
“One big problem here is the court has said when you’re deciding — even if it’s an unofficial act — you cannot take into account any evidence of conduct that would be an official act.”
Meaning that even if the act is deemed unofficial and therefore open for prosecution, Smith will not be allowed to use certain evidence if that evidence is of an official nature. The court also ruled, “courts may not inquire into the President’s motives,” so the reasoning behind any potential criminal act conducted by a president doesn’t matter and cannot be presented in a trial.
“Even things that seem very clearly unofficial could be hard to prove that they are and could always give rise to an argument that they are [official],” Litman said.
4. How this applies to Trump’s legal cases
The court’s decision is a legal win for Trump. It further delays his federal election interference case, ensuring it will not go to trial this year. It also complicates the work of prosecutors in D.C., Florida and Georgia who are working on the other pending criminal cases he is facing. They will have to go through their cases and determine whether Trump does or does not have immunity related to 54 criminal counts he faces in the three remaining cases.
“For Jack Smith’s two cases [federal election interference and classified documents case], they’re hurting, but not certainly dead,” said Litman.
This decision is also impacting Trump’s conviction in the New York hush money case. Trump was scheduled to be sentenced on July 11 after being found guilty on 34 criminal charges. But that sentencing is now delayed until Sept. 18 at the earliest.
The bulk of the criminal actions in the hush money case did take place before Trump was president, but Litman, who attended parts of the trial, said some of the evidence against Trump is from actions after he became president. Trump’s defense team can now potentially argue that evidence should be thrown out because of the court’s ruling.
“I don’t think Judge [Juan] Merchan will credit those arguments enough to say there should be a new trial,” Litman said, speaking of the judge in that case.
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