Washington — 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 dealt primarily with special counsel Jack Smith’s case against Trump in Washington, D.C. While the court’s 6-3 decision made some specific determinations about what conduct alleged in Smith’s indictment cannot be brought to trial, the majority left much of the decision-making up to U.S. District Court Judge Tanya Chutkan, who is overseeing that case. Chutkan will have 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. He has pleaded not guilty on all charges.
Here’s what the ruling could mean for each of Trump’s criminal cases:
Trump’s 2020 election case
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 down to Chutkan’s court and instructed her to review the indictment under the legal standard they established. This will all but certainly 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 Trump documents case
Justice Department
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.
The Georgia 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 New York case
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.
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.
