The U.S. Supreme Court has ruled that former presidents are immune from prosecution for official acts they have committed. It will now be up to lower courts to determine whether Donald Trump’s actions to try to overturn his 2020 presidential election defeat fall into that category, the court ruled in a decision Monday.
While “we have just recognized for the very first time a criminal immunity for essentially any official act,” it is not a total victory for the Trump camp, summarizes Rafael Jacob, associate researcher at the Raoul-Dandurand Chair in Strategic and Diplomatic Studies at the Université du Québec à Montréal. Official acts are actions taken by a president in the exercise of his functions, while unofficial acts are gestures made to benefit him personally.
While the Republican sought absolute immunity, the court ruled that presidents have no immunity for unofficial acts. “The question obviously becomes: What is official and what is not?” Mr. Jacob continued. And the country’s highest court has refrained from offering a clear answer to that question. Whether the former president’s actions were official or not will have to be judged on a case-by-case basis.
By sending back to lower courts the responsibility for determining how to apply the decision to Donald Trump’s situation, the Supreme Court is effectively creating an additional delay before he can be tried in the case surrounding the 2020 presidential election results.
Power and Dissent
The court’s decision can be defended in principle, according to Rafael Jacob. The president should be able to exercise his functions to reflect the popular will without having to fear criminal prosecution.
He says the Supreme Court’s role is to recognize great principles that are “eternal.” But in practice, “we live in a situation where the former president, the likely future president, is a guy who abused his powers, threatened democracy and threatens it again,” Jacob adds. What (the Supreme Court) has just said is that this president, like all the others, will never have to worry about facing any criminal prosecution, as long as he is able to demonstrate that the decisions he made and the actions he took were done in the course of his official duties.”
“The president is going to be above the law for the most part” in the exercise of his functions, believes David Grondin, professor of communication and researcher at the Centre for International Studies and Research at the University of Montreal. However, he believes that people in the upper echelons of government and the military would oppose what Donald Trump considers extreme uses of force.
The majority decision is colored by presidential appointments over the past three decades, Jacob said. All of the justices who voted for the ruling were appointed by Republican presidents (three by Donald Trump, three by predecessors). All three of the court’s progressive justices dissented.
This was particularly true of Justice Sonia Sotomayor, who wrote that the decision “makes a mockery of the fundamental principle of our Constitution and our system of government, that no one is above the law.” She said in the courtroom that the immunity granted “is as bad as it sounds, and it is without merit.”
What effects on the presidential campaign?
From a political point of view, “Trump has certainly won his bet” by avoiding criminal trials before the election next November, according to Rafael Jacob.
“The first conviction against Trump had at best negligible effects on public opinion,” he adds. Not opening the door to other trials between now and the election should ensure that the former president’s legal troubles do not monopolize all the attention between now and Election Day, but it is unlikely that it will have an impact on voting intentions, the expert believes.
This decision “strengthens Donald Trump’s candidacy,” according to Mr. Grondin. Mr. Trump also reacted on the Truth Social network by praising a “brilliantly written and intelligent” decision.
Recall that the former president was found guilty in May at his criminal trial for concealing bribes in the Stormy Daniels affair.
With the Associated Press