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Trump immunity case: Supreme Court rules ex-presidents have substantial protection from prosecution

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The Supreme Court ruled Monday in Trump v. United States that a former president has substantial immunity from prosecution for official acts committed while in office, but not for unofficial acts.

In a 6-3 decision, the Court sent the matter back down to a lower court, as the justices did not apply the ruling to whether or not former President Trump is immune from prosecution regarding actions related to efforts to overturn the results of the 2020 election.

‘The President enjoys no immunity for his unofficial acts, and not everything the President does is official,’ Chief Justice John Roberts wrote for the majority. 

‘The President is not above the law. But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution. And the system of separated powers designed by the Framers has always demanded an energetic, independent Executive,’ he said. 

‘The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts. That immunity applies equally to all occupants of the Oval Office, regardless of politics, policy, or party,’ he continued. 

The question stemmed from Special Counsel Jack Smith’s federal election interference case in which he charged Trump with conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction of and attempt to obstruct an official proceeding; and conspiracy against rights. 

Those charges stem from Smith’s months-long investigation into whether Trump was involved in the Jan. 6, 2021, Capitol riot and any alleged interference in the 2020 election result.

Trump pleaded not guilty to all charges and argued he should be immune from prosecution from official acts done as president of the U.S. 

Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, dissented, saying the decision ‘makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.’

‘Relying on little more than its own misguided wisdom about the need for ‘bold and unhesitating action’ by the President … the Court gives former President Trump all the immunity he asked for and more. Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent,’ she said. 

Justice Clarence Thomas penned a separate concurrence ‘to highlight another way in which this prosecution may violate our constitutional structure’ – the appointment of Jack Smith as special counsel. 

‘In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States. But, I am not sure that any office for the Special Counsel has been ‘established by Law,’ as the Constitution requires. By requiring that Congress create federal offices ‘by Law,’ the Constitution imposes an important check against the President—he cannot create offices at his pleasure.’

‘If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President,’ he said.

‘[T]here are serious questions whether the Attorney General has violated that structure by creating an office of the Special Counsel that has not been established by law. Those questions must be answered before this prosecution can proceed. We must respect the Constitution’s separation of powers in all its forms, else we risk rendering its protection of liberty a parchment guarantee,’ he concluded.

Smith’s case against the former president and its trial have been pending amid the high court’s consideration of the issue. 

In an exclusive interview with Fox News Digital, former President Trump said, ‘I have been harassed by the Democrat Party, Joe Biden, Obama and their thugs, fascists and communists for years, and now the courts have spoken.’ 

‘This is a big win for our Constitution and for democracy. Now I am free to campaign like anyone else. We are leading in every poll—by a lot—and we will make America great again,’ he said.

The justices heard arguments from Trump attorney John Sauer and Michael Dreeben, a Justice Department attorney representing Special Counsel Jack Smith, on April 25 on whether presidents should have ‘absolute immunity.’

During those arguments, both liberal and conservative justices focused on the broader implications of the question for future presidents but raised sharply different concerns.

Justice Samuel Alito questioned the repercussions of charging a former president. 

‘Now if an incumbent who loses a very close, hotly contested election knows that a real possible nullity after leaving office is not that the president is going to be able to go off into a peaceful retirement, but that the president may be criminally prosecuted by a bitter political opponent,’ Alito asked, ‘will that not lead us into a cycle that destabilizes the functioning of our country as a democracy? And we can look around the world and find countries where we have seen this process, where the loser gets thrown in jail,’ he said. 

Meanwhile, Justice Ketanji Brown Jackson, appointed by President Biden, asked if the ‘potential for criminal liability is taken off the table, wouldn’t there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they’re in office?’ 

If someone with those kinds of powers, the most powerful person in the world with the greatest amount of authority, could go into office knowing that there would be no potential full penalty for committing crimes. I’m trying to understand what the disincentive is from turning the Oval Office into, you know, the seat of criminal activity in this country,’ she said.

Justice Brett Kavanaugh summed up the stakes for the court’s decision: ‘This will have huge implications for the presidency.’

‘I’m not talking about the present, so I’m talking about the future,’ Kavanaugh said. 

And Justice Neil Gorsuch stressed during questioning: ‘We’re writing a rule for, yes, for the ages.’

As for Alito’s question, the former president has repeatedly claimed that he is being prosecuted by his political opponents, warning Americans and voters that all cases against him, in all jurisdictions, are being brought by his opponent — President Biden — and being done in coordination with the White House. 

Meanwhile, the ruling comes after a New York jury found Trump guilty on all counts of falsifying business records in the first degree stemming from Manhattan District Attorney Alvin Bragg’s investigation. 

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