The conservative-majority US Supreme Court extended the president’s criminal immunity on Monday, July 1, a victory for Donald Trump, whose federal trial has been delayed once again, while his opponent Joe Biden denounced a “dangerous precedent.”
By deciding on February 28 to take up this question, then by scheduling the debates nearly three months later, the highest court in the United States had already considerably postponed the federal trial of the former Republican president for attempting to illegally reverse the results of the 2020 election won by Joe Biden.
By a majority of six to three – conservative justices against progressives – the Court held that “the president enjoys no immunity for his unofficial acts” but that he “is entitled to at least a presumption of immunity for his official acts.” Writing for the majority, Chief Justice John Roberts based this decision on “constant principles of separation of powers.” The Court therefore sent the case back to the trial court to determine which acts are potentially immune from criminal prosecution. The burden is on the prosecution to show that they are not when they were committed in the exercise of its functions.
“A dangerous precedent”
Donald Trump hailed the “historic decision,” saying it dismissed most of the charges in the four criminal proceedings against him. In a televised address, Joe Biden denounced the decision as setting a “dangerous precedent” because the president’s powers “will no longer be limited by law.”
With this jurisprudence, Donald Trump will be “emboldened to do what he wants, when he wants” in the event of victory in the November presidential election, his Democratic opponent estimated.
For Democratic Senator Richard Blumenthal, the Court has simply granted “a license to authoritarianism” to presidents. “My stomach turns with fear and anger that our democracy could be so endangered by an out-of-control Court,” whose conservative members will be seen “rightly” […] like politicians in magistrates’ robes,” he wrote.
Democratic Rep. Pramila Jayapal also called the decision “shocking” and “disastrous, which could have serious consequences for our democracy.” The court “significantly weakens” the ability to hold a president accountable if he “tries to use his office for a criminal purpose,” she said.
Her colleague Alexandria Ocasio-Cortez indicated on X that she intends to launch impeachment proceedings against some of the judges in an attempt to obtain the departure of these magistrates appointed for life. An initiative which, however, has no chance of succeeding.
A king”
Beyond the case of Donald Trump, this decision “redefines the institution of the presidency” by transforming its holder into “a king above the law in every use of his official power”, wrote Justice Sonia Sotomayor, in her dissent joined by her two progressive colleagues. “When the president does it, it means it’s not illegal”, ironically remarks on X John Dean, White House legal adviser at the time of the Watergate scandal in 1974, citing the line of defense of the then president Richard Nixon. “Confirmed by the Supreme Court of the United States in 2024”, he concludes.
Steven Schwinn, a constitutional law professor at the University of Illinois at Chicago, said: “To the extent that Donald Trump was trying to drag this out until after the election, he was completely successful.” The decision “will seriously hamper the prosecution of a former president because his official and unofficial actions are so often intertwined,” he said.
In the absence of a real trial before the vote, “there could be detailed hearings on the facts incriminated in the indictment to determine on which ones immunity applies, which will allow the population to be reminded of all of Trump’s acts and the events of January 6” 2021, nevertheless underlines the former federal prosecutor and professor of criminal law Randall Eliason.
The entire procedure for this trial, initially scheduled to start on March 4, had already been suspended for four months.
“For posterity”
During the arguments, while the justices were generally skeptical of the absolute immunity claimed by Donald Trump, several insisted on the long-term repercussions of their decision. “We are writing a rule for posterity,” observed the conservative Neil Gorsuch, referring to the unprecedented nature of the question.
Targeted by four criminal proceedings, Donald Trump is pulling out all the stops to be tried as late as possible, in any case after the presidential election. Found guilty on May 30 by the New York courts of “aggravated false accounting to conceal a conspiracy to pervert the 2016 election”, he will be sentenced on July 11.
But according to several American media outlets, Donald Trump’s lawyers sent a letter to the judge in this case on Monday, to reverse the conviction and postpone the sentencing in light of the Supreme Court’s decision. This first criminal conviction, unprecedented for a former American president, will in all likelihood be the only one before the vote.
Through numerous appeals, Donald Trump’s lawyers have managed to postpone until further notice the other trials, at the federal level for withholding classified documents after he left the White House and before the courts of the key state of Georgia (southeast) for electoral interference in 2020. If he were re-elected, he could, once sworn in in January 2025, order the cessation of federal proceedings against him.