By requiring “absolute” immunity for some “official acts” and “presumptive” immunity for others, the justices cast doubt on the viability of Donald Trump’s election interference prosecution.
Challenging the federal prosecution stemming from his attempts to overturn the results of the 2020 election, Donald Trump argued that former presidents can be prosecuted for “official acts” only if they are first impeached by the House and convicted by the Senate based on the same conduct. The Supreme Court today rejected that claim, which is based on an implausible reading of the constitutional text. At the same time, the Court held that a former president enjoys “absolute” immunity for “actions within his exclusive constitutional power,” “presumptive” immunity for other “official acts,” and no immunity for unofficial acts.
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Both sides agreed that a former president can be prosecuted for “unofficial acts committed while in office,” although they disagreed about which conduct described in the indictment fell into that category. Today’s decision points toward resolution of that dispute but leaves many issues unresolved.
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“Trump asserts a far broader immunity than the limited one we have recognized,” Roberts writes. That claim was based on a counterintuitive reading of the Impeachment Judgments Clause, which says that when Congress impeaches and convicts a federal official, “the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.” Trump’s lawyers said that means a former president can be prosecuted for abusing his powers only after he is impeached and removed for the same underlying conduct.
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Roberts adds that “historical evidence likewise lends little support to Trump’s position.”