People on their phones outside the Supreme Court in Washington after the Supreme Court decided on former President Donald Trump's immunity case on July 1HAIYUN JIANG/The New York Times News Service
The United States Supreme Court decided, but didn’t decide. It expanded presidential powers, but restricted them. It created clarity, but sowed confusion.
The court’s long-awaited but muddled ruling in Donald Trump’s presidential immunity case, prompted by his efforts to overturn the 2020 election, will have both immediate and long-term implications.
The justices’ decision will reshape the office that Mr. Trump is once again seeking, by creating a new standard by which current and future courts will evaluate the actions of presidents.
At the same time, it will shape the 2024 presidential election in a circuitous way. By deciding not to decide the case and sending it back to the district-court level, the Supreme Court in effect decided an ancillary issue: the timing of the final resolution of many of the most important criminal charges against Mr. Trump.
The effect was a paradox. The high court altered the course of the campaign by not altering it. The result is that the legal case that special counsel Jack Smith has mounted against Mr. Trump for his actions in 2020 almost certainly will not be resolved before the November election.
In kicking the case down to a lower judicial level, the Supreme Court created a legal framework for deciding whether presidents and former presidents have immunity for their actions. The court said they are invulnerable to legal challenge for their actions in pursuit of what Chief Justice John G. Roberts Jr., writing for the majority, called the president’s “core constitutional powers.” This is arguably an expansion of presidential power.
But, Chief Justice Roberts wrote, presidents and former presidents are vulnerable to legal action in cases where their actions are not directly part of their official responsibilities.
This delineation between official and unofficial acts is an immensely important addition to the profile of the American presidency.
All Supreme Court decisions create precedents. This one is a precedent prompted by a lack of precedent, for no president or former president has ever faced legal actions remotely like those mounted against Mr. Trump. In deliberating and rendering this decision, the high court was acutely aware of both the import and implications of the issues involved. “We are writing a rule for the ages,” Justice Neil Gorsuch said during oral arguments in April.
What remains to be decided is whether Mr. Trump’s actions in his drive to prevent the election of Joe Biden were part of his official duties.
“The district court will have to apply a pretty complicated analysis that may result in some of the charges sticking,” said Riley Keenan, a University of Richmond expert in constitutional law. The Supreme Court, he said, “has not decided for itself and wants the lower courts to make that decision.”
In a broader sense, much else remains to be decided, with implications far beyond the 2024 election. The creation of this new standard – “core” actions for which presidents have “absolute” immunity; other acts for which they have, at a minimum, “presumptive” immunity; and “unofficial” actions for which they have no immunity – will guide the actions of presidents and those who mount legal actions against them for decades.
“This was a case about what kind of presidency we would have, shaping what is already the most powerful office on the planet,” said Laurence Tribe, a Harvard constitutional law expert. “It could be the most important decision in the last half-century at least.”
Prof. Tribe and others have argued that this ruling, decided by the 6-3 conservative-liberal ideological split that has become customary in the contemporary high court, is in effect a victory for Mr. Trump, because it postpones a criminal trial that has the potential to be a political burden for his campaign. Depending upon the decision of the district court, Mr. Trump might wipe the slate clean if he is elected and directs his attorney-general to dismiss the charges. More immediately, the high court has ruled against some of the charges Mr. Smith has prepared against the former president. It said that Mr. Trump’s efforts to get his administration to pursue his argument that the 2020 election had been tainted by fraud were covered by his official duties.
The court’s decision did not resolve many other elements of Mr. Smith’s case. This reflects a debate within the court that has been part of American history for generations, and which was central to the prosecution of Richard Nixon in the Watergate years a full half-century ago.
In his decision, Chief Justice Roberts argued that a president – not just Mr. Trump – ”enjoys no immunity for his unofficial acts, and not everything the president does is official.” Then he added one of the governing notions of American politics and jurisprudence: “The president is not above the law.”
At the same time, Justice Sonia Sotomayor said the decision “makes a mockery of the principle” that “no man is above the law.” In her dissent, joined by the two other liberal justices, she argued, moreover, that the majority decision “gives President Trump all the immunity he asked for and more.”
This matter might have come before the court earlier, had Mr. Nixon not resigned in 1974, or had Bill Clinton not accepted a five-year suspension of his law licence and agreed to pay a US$25,000 fine in a case that grew out of a sexual-harassment suit.