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Supreme Court says Trump has absolute immunity for core acts only

The U.S. Supreme Court has found that former President Donald Trump is partially immune from prosecution.
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The U.S. Supreme Court has found that former President Donald Trump is partially immune from prosecution.

The decision likely ensures that the case against Trump won’t be tried before the election, and then only if he is not reelected.

The U.S. Supreme Court, in a 6-3 decision along ideological lines, ruled that a former president has absolutely immunity for his core constitutional powers– and is entitled to a presumption of immunity for his official acts, but lack immunity for unofficial acts. . But at the same time, the court sent the case back to the trial judge to determine which, if any of Trump actions, were part of his official duties and thus were protected from prosecution.

That part of the court’s decision likely ensures that the case against Trump won’t be tried before the election, and then only if he is not re-elected. If he is re-elected, Trump could order the Justice Department to drop the charges against him, or he might try to pardon himself in the two pending federal cases.

Chief Justice John Roberts wrote the court’s decision, joined by his fellow conservatives. Dissenting were the three liberals, Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson.

That part of the court’s decision likely ensures that the case against Trump won’t be tried before the election, and then only if he is not re-elected. If he is re-elected, Trump could order the Justice Department to drop the charges against him, or he might try to pardon himself in the two pending federal cases.

Controversy over Thomas’ failure to recuse centers on his wife’s role in trying to overturn the 2020 election results. Her actions were documented in emails she sent to Mark Meadows, Trump’s chief of staff, urging him to support a scheme to seat fake electors in place of those chosen by the voters to cast electoral college ballots in Arizona and other states. In addition Thomas and his wife have accepted lavish gifts from big money Republican donors, gifts that the group FixTheCourt has said are worth more than $4 million. Justice Alito’s wife hung an upside down American flag outside the Alito home after the election, an act that was widely seen as a symbol of support for the view that the election had been stolen. The justice maintained he asked his wife to take down the flag but that she refused for three days.

Monday's decision to send the case back to trial Judge Tanya Chutkan all but guarantees that there will be no Trump trial on the election interference charges for months. Even before the immunity case, Judge Chutkan indicated that trial preparations would likely take three months. Now, she will also have to decide which of the charges in the Trump indictment should remain and which involve official acts that under the Supreme Court ruling are protected from prosecution.

Even after Judge Chutkan separates the constitutional wheat from the chaff, Trump could seek further delays, as immunity questions are among the very few that may be appealed prior to trial.

Monday's Supreme Court decision came months after the court agreed to hear the case Feb. 28 and scheduled arguments for two months later. Court critics have noted that the justices could have considered the case as early as in December when Justice Department Special Counsel Jack Smith unsuccessfully sought review of the same questions later put forward by Trump.

All of this stands in stark contrast to the way the court has handled other presidential power cases. In 1974 the justices ruled against President Nixon just 16 days after hearing oral arguments. The vote was 8-to-0, with Justice William Rehnquist recusing himself because of his close ties to some of the officials accused of wrongdoing in the case. And this year the court took less than a month to rule unanimously that states could not bar Trump from the ballot.

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Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.
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