Trump’s Risky Reaction to the Immunity Decision

Three Atlantic writers on the Supreme Court ruling and what it means for the presidency

Latest Jul 2, 2024 0 34 Add to Reading List

Trump’s Risky Reaction to the Immunity Decision

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Today, three Atlantic writers explain the Supreme Court’s ruling on presidential immunity and what it means for the future of the American presidency.

First, here are four new stories:

Spiking the Football

The Supreme Court released a decision today that grants presidents partial immunity from criminal prosecution. In a 6–3 vote along ideological lines, the justices ruled that a president’s exercise of “core” constitutional powers are protected with “absolute” immunity, their remaining official actions are presumed immune, and unofficial acts are not protected at all. The Court has kicked the case back to the lower courts to decide which parts of Donald Trump’s federal election-interference indictment fall under each category, all but confirming that Special Counsel Jack Smith’s January 6 case will not go to trial before Election Day. Below, three Atlantic writers help you make sense of the ruling and what it means for the future of presidential power in America.

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Stephanie Bai: Trump’s team sees the Supreme Court decision as a win, even though the justices rejected his claim to absolute presidential immunity. How do you think Trump and his allies will use this ruling in his campaign and in their rhetoric on the election-interference case?

David A. Graham, staff writer: I was fascinated to see Trump’s campaign immediately label the decision “total immunity.” Maybe that says more about his love of winning than it does about his team’s strategy. I expect we’ll continue to see more of this: He’ll claim that the Supreme Court fully vindicated him, ignoring that the trial court still has much to work out here, and he’ll say this proves the cases against him are just political persecution. We saw a little of this in the debate last week, where he refused to disavow the January 6 insurrection and quickly pivoted to accusing Joe Biden of the “weaponization” of the Justice Department.

I wonder if this is a good idea, though. Polls show that strong majorities of Americans—understandably!—don’t think the president should be fully immune from prosecution (nor do they trust the Supreme Court). In spiking the football, Trump risks reminding voters about the things they like least about him.

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Stephanie Bai: Will this ruling have any bearing on the other criminal cases pending against Trump?

Quinta Jurecic, contributing writer: The majority’s ruling is so complex and tangled—and the rules that it purports to establish are so opaque—that it’s difficult to say how precisely it will be interpreted by lower courts. I spent an hour reading through the federal January 6 indictment trying to make sense of how the standards set by today’s decision would apply to the various allegations set out by the special counsel, and concluded that I simply had no idea how to apply these rules.

The case that will most obviously suffer from the Court’s ruling is the Georgia-state case against Trump about his effort to overturn the 2020 election, which addresses substantially the same conduct as the election-interference charges he faces in federal court. The Georgia case, though, has already been held up over litigation concerning conduct by Fulton County District Attorney Fani Willis, and it won’t get moving again anytime soon.

What about the New York case, in which Trump was convicted on 34 felony counts of falsifying business records? The majority of the conduct at issue happened before Trump took office, but today’s ruling holds that prosecutors can’t even introduce evidence of official presidential acts into the record to prove the criminality of an unofficial act—so Trump could point to stray pieces of evidence here and there from his time in office in an effort to get the verdict thrown out. (That doesn’t mean this litigation will be successful, of course.)

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Stephanie Bai: You wrote today that one of the most basic principles of American constitutional government is that the president is not above the law. Why, in your view, did some Supreme Court justices challenge that principle today? And what does that mean for the future power of the presidency?

Adam Serwer, staff writer: The Supreme Court ruling gives presidents “absolute immunity” for certain official acts but then uses legalese to blur the difference between official and unofficial in such a way that the distinction between the two is virtually impossible to make. The end result is that whatever lip service was paid to the rule of law in the opinion is obliterated; a president can act with the most corrupt purpose imaginable and be immune from prosecution, no matter the motive or the consequences. In this context, it renders a president who refuses to leave office immune to prosecution for the actions he takes in doing so, as long as he uses his “official” powers in the attempt.

Make no mistake, the ruling is intended to shield Trump and Trump alone, or possibly some future aspiring despot who happens to be a Republican. A Democrat in similar circumstances would almost certainly find himself subject to the kind of pieties about small government and the rule of law the right-wing justices invoke when they want to say the government can’t regulate pollution or financial fraud.

Related:

Today’s News

The Supreme Court declined to rule on the constitutionality of two laws in Florida and Texas that would limit social-media companies’ ability to moderate content on their platforms.
Steve Bannon, a former Trump adviser who was found guilty of contempt of Congress, reported for the first day of his four-month prison sentence.
A judge declared a mistrial due to a deadlocked jury in the high-profile trial of Karen Read, who was accused of killing her police-officer boyfriend in Massachusetts. Prosecutors say they intend to retry her case.

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