Consider This from NPR - Supreme Court rules Trump is immune from prosecution for certain official acts

Episode Date: July 1, 2024

On Monday the Supreme Court issued its most anticipated decision of the term — expanding the power of the presidency, and calling into question whether former President Trump will ever face a trial in federal court for allegedly attempting to overturn the 2020 election. In a 6-to-3 decision, along ideological lines, the Court ruled that presidents have absolute immunity for their core constitutional powers, and are entitled to a presumption of immunity for other official acts. But the Court ruled that presidents do not have immunity for unofficial acts. Host Ailsa Chang speaks with constitutional law expert Kim Wehle about the legal issues raised by the ruling and with NPR Senior Political editor and Correspondent Domenico Montanaro about how this decision could impact the election.For sponsor-free episodes of Consider This, sign up for Consider This+ via Apple Podcasts or at plus.npr.org.Email us at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

So what, in a sense, you're saying is that there are certain situations where the president can decide that it's in the best interest of the nation or something and do something illegal. When Richard Nixon sat down for a series of interviews in 1977 with British journalist David Frost, he spoke words that have echoed across the 20th century and into the 21st. Well, when the president does it, that means that it is not illegal. This idea of presidential immunity, whether a sitting president is shielded from criminal prosecution, lies at the center of the Justice Department's case against former President Trump for his attempts to overturn the 2020 election. But the question had never been taken up by the Supreme Court until now. In a landmark 6-3 decision along ideological lines, the Supreme Court has ruled that a president is absolutely immune

for acts carried out under core constitutional powers, enjoys a presumption of immunity for official acts, but is not immune from prosecution for unofficial acts. This is a significant short-term victory for Donald Trump. NPR national justice correspondent Kerry Johnson says what counts as a core official or unofficial duty when it comes to Trump's actions after the 2020 election will have to be answered at a later date. The court majority has sent this back down to the district judge to determine action by action, which counts and which does not. All of that was going to take time.

And that means the prospect of a trial before the election is even more dim now than it was before. This is an opinion that greatly expands presidential power. Rick Hasson is a constitutional law professor at the University of California, Los Angeles. The kinds of evidence that you would actually need to prove that the president is engaged in criminal conduct, now the prosecutors would be hamstrung. So this is a big shift of power towards the president. Consider this. The Supreme Court's ruling on presidential immunity will not only have far-reaching implications for Donald Trump and the 2024 election, but for the powers of the executive branch.

From NPR, I'm Ilsa Chang. It's Consider This from NPR. On Monday, the Supreme Court ruled that presidents have absolute immunity for their core constitutional powers and are entitled to a presumption of immunity for other official acts. But the court ruled that presidents do not have immunity for unofficial acts. So what impact will the decision have on Trump's federal election interference case, one of the three remaining criminal cases that he's still facing? Well, to answer that, I spoke with constitutional law expert Kim Whaley. Well, I'm not surprised that the court ruled for immunity. They wouldn't have

taken this case and they wouldn't have framed it so broadly if they weren't going to manufacture a new part of the Constitution, essentially. But I was surprised at how close to the line of absolute immunity. It's very hard to see what is still left of criminal liability in the rule of law for presidents moving forward under the very loose test that the court established in its majority opinion today. Very interesting. Let's talk more about that because this case, I mean, the whole reason it ended up before the Supreme Court is because Trump had tried to get one of the indictments against him dismissed based on presidential immunity. We're talking about the four federal counts related to his alleged attempts to overturn the 2020 election. So what does this ruling mean for the Justice Department's ability to even

proceed with this case against Trump? Well, the court not only set out that test, but it had a few caveats. One is that the immunity doesn't just mean dismissal of the counts. The immunity goes to the actual evidence. That is, the jury cannot hear evidence that falls within the scope of immunity. So for example, the justice has said, for sure, communications with the Department of Justice are absolutely immune. So I think Jack Smith's team have to now go back and look at all the evidence that it gathered to support the four counts and that it submitted to the grand jury and decide if you take the stuff off the table that the Supreme Court said is now immune, do we still have enough to go forward? If they decide they do, then it would go to Judge Chutkin, the district court judge, to decide of that remaining evidence,

what of it is actually also immune with Donald Trump arguing that it's probably all immune because he was still president when he took these actions and then that would be appealed. The other, I think, big wrinkle is the court said that motive is irrelevant. So the scope is very broad in that it's official if it's technically taken as president rather than say, okay, I'm talking to my justice department to direct them to investigate a political rival. That would be a motive, I'm talking to my Justice Department to direct them to investigate a political rival. That would be a motive versus I'm talking to my Justice Department to have them investigate terrorism, which would be within the scope I think regular people would think is legitimate.

State of mind is not relevant. Okay, so what about the case against Trump brought by prosecutors in Fulton County, Georgia? Because that case is also about election interference. How much is that case going to be impacted by this ruling? I think because he was still president, you know, the evidence relating to Donald Trump's speeches about upending the election, his communications with state officials and others, the court said maybe communications with state officials could be unofficial. But I think that is all going to be now parsed. It has to be parsed by the prosecutors and that would have to be parsed by the judges in Georgia. And I think ultimately,

the Supreme Court has given itself the authority to decide on a later appeal what falls within and outside the scope of this new immunity doctrine that it just created for Article 2 of the Constitution. I mean, the larger question is, you know, whether a president even enjoys immunity is based on whether the actions of that president are considered official or unofficial, right? So how much did this court lay out? Where is the line between official and unofficial acts exactly? Well, they said if it's specific in the Article II of the Constitution,

then it would be core. So it talked about the pardon power, which is my next book that comes out in September. They said, okay, if you pardon in exchange for something that maybe even is illegal, the court suggests that would still be immune from any prosecution. It talks about, as I mentioned, communications with the Justice Department. It says pressuring Mike Pence to not certify an election. That would be immune and official. with the Justice Department, says pressuring Mike Pence to not certify an election. That would be immune and official.

But to the extent to which what Mike Pence was doing was Senate-oriented, legislative, maybe it's unofficial. So, Elsa, this is a real quagmire. The court opened up a big can of worms that these trial judges are going to have to resolve. And I think what it creates down the line is a chilling effect. It's such a complicated scenario now that even if a president really does do something that shocks the conscience, prosecutors are going to have to say, hey, is this even worth bringing, even if we're absolutely sure this is the kind of thing that should be prosecuted because this immunity doctrine is so hard to overcome now. It's not even just the line between what is

official and unofficial. There's also the question of what is what does this presumption mean? Like this ruling says a president has presumptive immunity for official acts, including acts within the outer perimeter of a president's official duties. How difficult do you think it will be for prosecutors to overcome a presumption of immunity? Like how do you overcome that presumption? Yeah, that's not entirely clear. Sure. Yeah. Presumption means you get the benefit of the doubt. We're going to treat the president as acting in good faith. And the justification for doing that, the majority says, is we cannot assume prosecutors will act in good faith.

We need to give the president this benefit of the doubt because otherwise they'll have rogue prosecutors. But generally under the law, presumption means you have to have super duper evidence. You have to really show that this is not official conduct. And I think there's an argument that pretty much anything a president does, so long as they're still technically president and in the Oval Office and talking to other federal government officials, that is off limits for any kind of legal accountability. So Justice Sotomayor's dissent, sort of saying this creates a king

in the White House, I don't think is hyperbole. Let me talk about that dissent because Justice Sotomayor imagines scenarios like future presidents ordering assassinations of political rivals, organizing military coups, taking bribes in exchange for presidential pardons. What do you make of those hypotheticals? Are they far-fetched or there's a glimmer of possibility there? Yeah, I do think there is a glimmer of possibility. I don't think they're far-fetched. The majority sort of says they're far-fetched. But remember, you know, we've gone this far in our constitutional history without immunity for presidents. It hasn't had a chilling effect. Presidents know there are boundaries, there are lines. The court created it in response to January 6th, essentially gave a reward for January 6th for that kind of activity. So I think

what we can see logically is something more egregious down the line. It's now green lighting presidents to cross boundaries. And so long again, so long as you're doing it officially, which is a lot of power, as long as you're using the massive powers of the office, it's going to be very hard to challenge that or even, as I said, to use that evidence to create a case. It's a very, very pro-presidential power ruling and ultimately pro-Donald Trump ruling. That was Kim Whaley. She's a law professor at the University of Baltimore. We also wanted to understand the political implications of the ruling. That was Kim Whaley. She's a law professor at the University of Baltimore. We also wanted to understand the political implications of the ruling. And for that,

I spoke with NPR senior political editor and correspondent Domenico Montanaro. OK, so what do you think this ruling will mean for the federal election interference case against former President Trump and also for the election ultimately? Well, first of all, it's a huge win for Trump, but just by the fact of the timeline, because it now means there's no chance of a verdict in this case before the election. And this was seen as a case at the heart of the criticism against Trump with what happened on January 6th. It's consequential politically because voters have been saying in polling that they could move at the margins, perhaps, away from Trump if he was convicted of these crimes that have been investigated against him. There were four criminal investigations into his conduct. Trump was convicted in one of those cases, the New York State fraudulent business

practices case related to the 2016 election. And we saw the polls move a bit in Biden's favor after that felony conviction. And that was seen as the least potentially consequential of the cases. But now voters won't have the context of whether Trump is guilty in this January 6th case before they vote in the fall. Well, I imagine the Trump campaign must be pretty happy about this outcome at the Supreme Court. How are they reacting specifically? Yeah, definitely. I mean, the Trump team is, you know, sent out a victory lap fundraising email minutes after the decision. And we know these cases have been a fundraising boon for Trump email minutes after the decision. And we know these cases have been a fundraising boon for Trump. Trump called the decision a, quote, big win.

And all of how he's reacting really kind of pulls from the Trump playbook from past years, declaring victory, even when the truth is a bit more nuanced, like the Russia interference, Mueller investigation, when he said he was exonerated when Mueller explicitly said he was not. It's how he reacted after he was impeached twice and a majority of senators voted to convict him, but not the two thirds that's required for removal from office. And Trump declared exoneration then too. Trump has been able to insulate himself really with those tactics with his voters, suffered little consequences politically because of it. And his legal team has largely succeeded, except for that New York case, as I said before, in trying to dismiss, delay and distract. Okay, well, meanwhile, how is the Biden campaign reacting to all of this?

Well, they're ripping from its own playbook, too, and dismissing the significance of what a court says. You know, like after Trump's New York conviction, the Biden campaign released a statement saying in part, quote, Trump's ruling doesn't change the facts of what happened on January 6th. They also said that Donald Trump, quote, snapped after he lost the 2020 election and encouraged a mob to overthrow the results of a free and fair election. And they noted that voters rejected Trump once and that, quote, Joe Biden will make sure they reject it for good in November. Of course, the president has his own problems in trying to recover from his shaky debate performance last week, which Democrats fear is really hampering his ability to strongly make the case against Trump.

But these legal issues are core to why Biden says people should vote for him despite concerns about his age because of the two very different kinds of things that these men want to do for the country. Sure. But I mean, regardless of what people think about this particular Supreme Court decision, you have people in both parties right now who do not trust this particular Supreme Court, particularly among Democrats in recent years. Can you just talk about how the court factors into this election more broadly? Well, the Supreme Court, no doubt, is going to be a central part, is a central part of the campaign already, not just because of decisions like this one, but also principally because of abortion rights.

You know, they also happen to be the two things that the Biden campaign is running most strongly on. Dobbs, the Dobbs decision that overturned Roe v. Wade, wouldn't have happened if not for the justices Trump appointed. And it's likely this decision and what it could mean for the presidency likely wouldn't have either. You had all three liberal justices dissenting in this case, most strongly by Justice Sonia Sotomayor, who said this decision makes a president, quote, a king above the law. Foreign policy and judges, you know, are really things that presidents, you know, can control more than a lot of other things, but people don't seem to vote on them. You know, and as we're seeing, though, the Supreme Court can really affect generations of American social policy in this current court's case in a way conservatives love and in ways that people on the left loathe.

That is M.P.R.'s Domenico Montanaro. Thank you, Domenico. You're welcome. This episode was produced by Mark Rivers and Tyler Bartlett. It was edited by Adam Rainey and Krishnadev Kalamer. Our executive producer is Sammy Yannigan. And one more thing before we go. You can now enjoy the Consider This newsletter.

We still help you break down a major story of the day, but you'll also get to know our producers and hosts and some moments of joy from the All Things Considered team. You can sign up at npr.org slash consider this newsletter. It's Consider This from NPR. I'm Elsa Chang.