Trump Secures His Get-Out-of-Jail-Free Card

When the Supreme Court agreed to take up the question of whether Donald Trump is shielded from prosecution over his role in January 6, two core questions were at stake. First was the substantive matter of whether the Court would find that presidential immunity protected a former chief executive from some measure of criminal accountability for engineering an insurrection. And second was the issue of whether the delay in Trump’s case caused by the Court—the additional months that it took for the justices to receive briefing, hear arguments, and muse over the finer points of law—would prevent the prosecution from going to trial before Election Day.

The answer to both questions turns out to be “yes.”

The Court handed down Trump v. United States at the final possible minute—the last case released on the last day of the term. The majority opinion—written by Chief Justice John Roberts and the bulk of it signed by the five other conservative justices, with all three liberals dissenting—acknowledges that there are some circumstances in which a president may face trial in criminal court for his conduct during office, but constructs a dense thicket of ambiguities for the Justice Department to get through before it can prosecute any such case. As Justice Ketanji Brown Jackson wrote in dissent, the majority’s opinion “makes it next to impossible to know ex ante when and under what circumstances a President will be subject to accountability for his criminal acts … no matter how well documented or heinous the criminal act may be.” Or, as Justice Sonia Sotomayor put it more directly: “In every use of official power, the President is now a king above the law.”

The initial indictment of Trump in the federal January 6 case twisted and turned to navigate around the various legal potholes created by the presidency’s unique status and the uncertainty over whether or not former presidents enjoy any immunity in criminal court. Before Trump’s arguments for immunity reached the Supreme Court, though, Special Counsel Jack Smith had received relatively speedy treatment from trial and appellate courts, which rapidly tossed out Trump’s arguments. If the Court had declined to weigh in and allowed the ruling of the U.S. Court of Appeals for the D.C. Circuit to stand—or even if it had accepted Smith’s early request to hopscotch over the appeals court and take up the case itself in December—Trump’s case could have gone to trial this past spring.

Instead, though, the justices decided that they needed to make their mark. At the end of February, the Court announced that it was taking the case. It heard oral arguments late in April. The opinion finally arrived this morning, at the beginning of July. This is relatively speedy for the Court, but compared with the scant two months that it took the justices to take up and decide the Fourteenth Amendment case against Trump’s eligibility to serve as president, it was molasses-slow. The delay was particularly striking given the posture of the justices during oral arguments, in which many of the conservatives managed to appear both pompous and uninterested in the underlying facts of Trump’s attack on American democracy. “I’m not concerned about this case,” announced Justice Neil Gorsuch at one point. At another, he declared grandly that the Court had been tasked with “writing a rule for the ages.”

[Adam Serwer: The Supreme Court puts Trump above the law ]

For the ages, indeed. The majority barely managed to write a rule at all. Roberts’s opinion identifies a “core” of presidential action central to the office that receives absolute immunity, and a seemingly expansive zone of activity that receives “presumptive” immunity, which prosecutors must be able to rebut. Prosecutors are also sharply limited in what evidence they can point to in proving unlawful conduct and identifying certain activity as outside the space of immunity entirely. The trial judge will now need to do an enormous amount of work with very little guidance from the Court as to what allegations in the indictment might meet the majority’s opaque standard of approval. The practical effect is that the Court has rescued Trump from facing trial before the election for his attack on democracy.

Roberts would surely be offended by this allegation. His opinion is grating not only in its obtuseness but also in its smarmy, finger-wagging assurance that the chief justice’s liberal colleagues are hyperventilating over the shoddiness of his logic and the dangers that the Court’s ruling might unleash. “The dissents’ positions in the end boil down to … fear mongering on the basis of extreme hypotheticals about a future where the President ‘feels empowered to violate federal criminal law,’” Roberts chides, quoting Sotomayor. But it’s difficult to call these hypotheticals “extreme” when the presidential candidate currently leading in the polls is someone who has fomented insurrection, promised to pursue revenge against his political enemies, and blithely ignored the law whenever it happened to be inconvenient.

“Our dissenting colleagues exude an impressive infallibility” in rejecting arguments for immunity, Roberts writes. Reading his opinion, though, I was impressed by the chief justice’s sense of the infallibility of his own institution. In her dissent, Justice Jackson argues that this decision is fundamentally about “aggrandizing power in the Judiciary”—seizing authority for the Court alone to “decide whether the law will be any barrier to whatever course of criminality emanates from the Oval Office in the future.” If Trump wins a second term, are the justices ready to face that challenge? There is no reason to think that the majority will be.