The Journal. - Trump Has Broad Immunity

Episode Date: July 1, 2024

The Supreme Court dealt a major blow to prosecutors hoping to convict Donald Trump on charges he sought to subvert the 2020 election. The court ruled 6-3 that former presidents enjoy sweeping immunity for their acts while in office. WSJ's Jess Bravin discusses what this ruling could mean for the future of American democracy.  Further Reading: -Supreme Court Deals Blow to Trump’s Prosecution, Ruling He Has Broad Immunity  Further Listening: -Will the Supreme Court Kick Trump off the Ballot?  -The Origin Story of Trump's Guilty Verdict  Learn more about your ad choices. Visit megaphone.fm/adchoices

So you were at the Supreme Court this morning. Did they, like, hand you a massive printout that says, here's the actual decision? Yes. Here it is. There it is. This is it. That's our colleague Jess Braven, holding a copy of the last Supreme Court decision of this term, and one of the most significant.

The decision said presidents should be immune from prosecution for official actions they took while in office. Well, this is a monumental ruling for the Supreme Court, and I think that it will be one of those that goes down in history. It will be a watershed of executive power. This is an extremely broad view of executive power, extremely deferential to the president and the presidency. And for former President Donald Trump, the decision was a major victory in his fight against the January 6th case

brought by Special Prosecutor Jack Smith. Well, the decision was about everything that Donald Trump and his lawyers could have expected from the Supreme Court. The decision found that there was a sort of a sweeping level of absolute immunity for anything a former president had done while he was in office. It was part of his official constitutional responsibilities. And so the Supreme Court left a very, very narrow pathway for Jack Smith to proceed with the prosecution of Donald Trump. Welcome to The Journal, our show about money, business, and power. I'm Ryan Knudson. It's Monday, July 1st.

Coming up on the show, what the Supreme Court's decision means for Trump, the presidency, and the court itself. We'll see you have it. The perfect summer mix. Bacardi. Do what moves you. Live passionately. Drink responsibly. Copyright 2024. Bacardi, its trade dress and the bat device are trademarks of Bacardi and Company Limited. Rum 40% alcohol by volume.

The case before the Supreme Court had to do with Trump's actions after he lost the 2020 election. We know that he undertook many, many things in the period between Election Day and the end of his term on January 20th, 2021, to remain in power anyway. And these things included pressuring Vice President Mike Pence, who presided over a congressional session, to reject Biden electors. We know that he telephoned the Secretary of State in Georgia and asked him to find enough votes to put him over the top, to put Trump over the top, things like that. The Justice Department appointed a special counsel to investigate. The special counsel, Jack Smith, eventually concluded there were crimes committed and went to a federal grand jury in Washington, which last August handed up an indictment on four counts

against former President Donald Trump. And those counts are all related to trying to undo the election results in 2020, culminating with the attack on the Capitol by Trump supporters on January 6th of 2021, which is when Congress was meeting to certify the election results. Trump pleaded not guilty, and he and his lawyers argued that he shouldn't be prosecuted at all

because presidents should be immune. Two lower courts, a district judge and a three-judge appellate panel, unanimously rejected that argument and said the case against Trump could proceed. So then Trump went to the U.S. Supreme Court, and there were some indications from the outset that the court was open to Trump's arguments. It rejected Jack Smith's requests to expedite the case. It held instead, it added an extra day to its argument calendar in April and heard the

arguments then. And then it delivered the decision on the last day of the term. Usually they try to end in June, but they went over a bit into July and handed the decision out today. What was the question that was before the Supreme Court? What was the question that was before the Supreme Court? The question was pretty basic. It was, does the president or former president enjoy immunity from prosecution for actions taken while he was in office? And if so, to what degree? That was the question before the Supreme Court. The question was not, did he do it or not?

The question was, can he be prosec it or not? The question was, can he be prosecuted at all, even if he did it? Historically, presidents have enjoyed some level of immunity. Under a Justice Department policy, sitting presidents can't be prosecuted for violating federal law. And a 1981 Supreme Court decision held that former presidents can't be sued by private parties for their official acts while in office. Today, the Supreme Court decision held that former presidents can't be sued by private parties for their official acts while in office. Today, the Supreme Court significantly expanded that immunity and said presidents can only be prosecuted for what it calls unofficial acts. So what's the difference between an official and an unofficial act? Well, the Supreme Court gave some guidelines about that.

One, it said anything that the president had to say to employees of the Justice Department was automatically official, and he had absolute immunity for that. So his efforts to get the Justice Department to file election fraud cases, which the Attorney General declined to do. Efforts to get the Justice Department to ask the Supreme Court to overthrow the election, which the Attorney General also declined to do. All that stuff is considered official actions. Threatening to fire the Attorney General if he didn't do what he's told. All that is considered official actions. President managing the government.

And there's absolute immunity for all that. So we know that part is now gone, that part of the case, which was part of Jack Smith's allegations against Trump. Then there are parts where the court said the former president has presumptive immunity. In other words, the government has to overcome the presumption that these were official actions. And what about an unofficial act? Well, they'd have to be something done in one's private capacity. So, for instance, the areas where the court suggested private acts might be found would be when Trump is communicating to state officials, right?

The president doesn't have any direct authority over state officials, so it's not like he's managing the U.S. government. But he has some role in communicating U.S. government positions, so unclear if those are private or official acts. If Trump is talking, though, to private individuals or to the Republican National Committee or political organizations like that, those might be more likely to be seen as private acts. They're in Trump's capacity as a candidate, not his capacity as the sitting president. So the court is sort of saying that, like, if a president directs a federal agency or some part of the government that he or she directly oversees, then that's an official act, regardless of what the president is telling that agency to do.

The president will be immune in that case. But if it's outside of directing a federal agency, if it's personal or if it's to a state or if it's somewhere outside of that, that may be unofficial. That's right. That's what they're saying. And they wanted to have this very, very, very broad concept of presidential immunity. What was the logic behind the ruling? The argument that Trump made and that the court largely accepted What was the logic behind the ruling? on the president who might be afraid to take the bold steps he believed were in the nation's

interest for fear that some future administration might put him on trial for him. So the president needs to be absolutely convinced that there can be no criminal ramifications for anything he does related to his constitutional duties and likely for any other duties he may have. The decision was six to three, along the court's ideological lines. All the Republican appointees sided with Trump. All the Trump appointees sided with Trump. The three Democratic-appointed justices, the liberal wing of the court, they were appalled and outraged by the majority decision, and they issued a very, very stinging dissent.

The court's three democratically appointed justices, Sonia Sotomayor, Katonji Brown Jackson, and Elena Kagan, all dissented. And the dissent, which was delivered by Justice Sotomayor, was scathing. And she says that the court essentially junked the idea that no one is above the law. The president gets to be above the law under this, and she was very upset. She read practically the entire dissent from the bench, which is a way in the symbolism of the Supreme Court that the dissenters signify their distress. Instead of signing her dissent, respectfully, I dissent, how they usually do it, she signed it, with fear for our democracy, I dissent, respectfully, I dissent, how they usually do it. She signed it with fear for

our democracy, I dissent. And that, again, is very significant in the language that Supreme Court justices use in their opinions, suggesting this is something that the losing side of the court felt was outrageous and terrifying. And Justice Sotomayor also said that the president is now effectively a king above the law. That's right. That is exactly right. That was this whole argument. Is the president just, or at least substantially like another citizen, or is the president have some kind of special aura around him or her that immunizes that person from having to be held account for the same rules that apply to everyone else. And the answer, according to the dissent, is the majority has gone the wrong way. They have done exactly what the framers did not want to do, which was to

put a king above the American system of government. Again, not the way the majority sees it, but that is definitely how the dissenters see it. One of the things that stood out to me in Justice Sotomayor's dissent is that she says that under the ruling, the president could now use the Navy's SEAL Team 6 to assassinate a political rival and still be immune. Well, if you read the majority the way it is set out, yes, that seems to be the core official duties of the president under the Constitution. One of them is being commander-in-chief of the armed forces. So, SEAL Team 6 is part of the armed forces. If the president ordered SEAL Team 6 to do something, that's an official act.

Whether the commandos are going to do it is a different question because they could be prosecuted for breaking the law. Members of the military are not supposed to obey an unlawful order. They have their own duty to disobey unlawful orders. So if they received an order telling them to go assassinate someone Trump doesn't like, and if they went and did it, they could be prosecuted. But Trump could not be prosecuted for ordering them to do it under the way this opinion reads, at least from my first reading of it.

What this means for Trump's campaign and his ongoing legal trouble is next. The Supreme Court's decision has put the case against Donald Trump for his role in January 6th in serious jeopardy. roll on January 6th in serious jeopardy. The court threw out parts of the case and sent it back to lower court judges to rule on whether what Trump did counted as official or unofficial acts. The impact the decision will have on Trump's other criminal cases is less clear. But what is clear is that Trump almost certainly won't face another trial before election day. To a degree. There will be an undercurrent of these allegations continuing probably for the rest of the year because these hearings will be going on. But whether Trump actually ends up ever

having to go to trial, even if the courts say that some of these are private acts, really is going to be up to the voters because if Trump is returned to office in the November election, he's in charge of the Justice Department and he can just simply cancel the whole case. So it would all go away. And he could also try to pardon himself to prevent some future president or future administration from reviving it. So in a sense, the Supreme Court is saying there's a higher court, a court above us. It's the court of public opinion. And whether Trump has to face the music on these allegations is going to be up to the voters. If they turn him down and he doesn't get back into the White House, then this prosecution will probably go forward if Jack Smith can establish that there are sufficient allegations that constitute private actions for a jury to hear. What does this ruling mean for Trump's campaign?

You know, in some ways, obviously, it helps Trump. In some ways, perhaps it will help the Democrats because they're going to say, look, you know, three of those justices who voted for him, he put them in there. And, you know, we know what he the way he demands loyalty from people he appoints and so forth. So whether that ends up moving any votes, I mean, who knows? But in terms of did Trump get what he wanted from this court, would he have preferred any different outcome from this court? Sure, he would have preferred that they threw out every conceivable charge against him and made it totally impossible for anything to proceed. But that was really not plausible. Trump's own lawyer conceded

at the oral argument that some of the things he's accused of doing were probably private actions. So there was very little chance that there would be absolute immunity for every single thing he did every minute of the day that he happened to be president. Writing on Truth Social, Trump said, quote, big win for our Constitution and democracy. Proud to be an American. The Biden campaign said that Trump, quote, thinks he's above the law and is willing to do anything to gain and hold on to power for himself. The implications of this case go beyond this year's election.

It'll also have an impact on the court itself and the public's trust in it. That's been eroding since the court took an even sharper turn to the right with three Trump appointees in 2020. And we see that the court's public approval at historic lows. So I don't think this is going to improve the court's broad reputation because of something that actually Justice Kavanaugh remarked on earlier this year at a judicial conference. He said, you know, the court's reputation depends on what the losers think. Do the losers feel they got a fair shake? Do the losers say, I respect the outcome even though I don't agree with it? Or do they say,

I don't respect the outcome. This is not a fair hearing. I did not get a fair hearing. You know, that sort of thing. So can the court maintain the respect of the losers in controversial decisions? And we haven't seen yet. Perhaps Americans will be broadly persuaded by the wisdom of this decision across party lines and so on, but I would be skeptical. That's all for today, Monday, July 1st.

The Journal is a co-production of Spotify and The Wall Street Journal. If you like our show, follow us on Spotify or wherever you get your podcasts. We're out every weekday afternoon. Thanks for listening. See you tomorrow.