The Supreme Court Does the Right Thing

Today the Supreme Court issued its long-awaited decision on Special Counsel Jack Smith’s prosecution of Donald Trump for, among other things, asserting his legal rights in the aftermath of the 2020 election. The issue in the appeal was the scope of presidential immunity. For their own reasons, both Trump and many Democrats chose to portray the Court’s 6-3 decision as a great victory for Trump. In fact, the Court steered a middle course, as most knowledgeable observers had expected.

The Court’s decision held, briefly, that a president is entitled to absolute immunity from criminal prosecution for all “actions within his conclusive and preclusive constitutional authority.” He is entitled to a presumption of immunity for “all his official acts.” But there is no immunity for his “unofficial acts.”

This is a moderate and sensible resolution of the unprecedented issues raised by Smith’s (absurd, in my view) prosecution. The difficulty, as the Court’s decision by Chief Justice Roberts recognized, is that applying these principles requires close attention to the facts. This case has been hurried through the courts because the Democratic Party was desperate to convict Trump of something–anything!–before the election. Therefore, the necessary factual development to properly apply the Court’s principles does not yet exist, and the Court remanded the case to the District Court for further proceedings consistent with its opinion–a very common appellate procedure.

Here are a few highlights from Justice Roberts’ majority opinion:

Determining whether a former President is entitled to immunity from a particular prosecution requires applying the principles we have laid out to his conduct at issue. The first step is to distinguish his official from unofficial actions. In this case, however, no court has thus far considered how to draw that distinction, in general or with respect to the conduct alleged in particular.

Despite the unprecedented nature of this case, and the very significant constitutional questions that it raises, the lower courts rendered their decisions on a highly expedited basis. Because those courts categorically rejected any form of Presidential immunity, they did not analyze the conduct alleged in the indictment to decide which of it should be categorized as official and which unofficial. Neither party has briefed that issue before us (though they discussed it at oral argument in response to questions). And like the underlying immunity question, that categorization raises multiple unprecedented and momentous questions about the powers of the President and the limits of his authority under the Constitution. As we have noted, there is little pertinent precedent on those subjects to guide our review of this case—a case that we too are deciding on an expedited basis, less than five months after we granted the Government’s request to construe Trump’s emergency application for a stay as a petition for certiorari, grant that petition, and answer the consequential immunity question. See 601 U. S., at ___. Given all these circumstances, it is particularly incumbent upon us to be mindful of our frequent admonition that “[o]urs is a court of final review and not first view.” Zivotofsky v. Clinton, 566 U. S. 189, 201 (2012) (internal quotation marks omitted).

Critical threshold issues in this case are how to differentiate between a President’s official and unofficial actions, and how to do so with respect to the indictment’s extensive and detailed allegations covering a broad range of conduct.

We offer guidance on those issues below.

Among others, the Court addressed the portions of the indictment relating to Trump’s conduct in relation to the January 6, 2021, protest at the Capitol. This is part of that discussion:

There may, however, be contexts in which the President, notwithstanding the prominence of his position, speaks in an unofficial capacity—perhaps as a candidate for office or party leader. To the extent that may be the case, objective analysis of “content, form, and context” will necessarily inform the inquiry. Snyder v. Phelps, 562 U. S. 443, 453 (2011) (internal quotation marks omitted). But “there is not always a clear line between [the President’s] personal and official affairs.” Mazars, 591 U. S., at 868. The analysis therefore must be fact specific and may prove to be challenging.

The indictment reflects these challenges. It includes only select Tweets and brief snippets of the speech Trump delivered on the morning of January 6, omitting its full text or context. See App. 228–230, Indictment ¶104. Whether the Tweets, that speech, and Trump’s other communications on January 6 involve official conduct may depend on the content and context of each. Knowing, for instance, what else was said contemporaneous to the excerpted communications, or who was involved in transmitting the electronic communications and in organizing the rally, could be relevant to the classification of each communication. This necessarily factbound analysis is best performed initially by the District Court. We therefore remand to the District Court to determine in the first instance whether this alleged conduct is official or unofficial.

In short, there is nothing surprising about today’s decision. It is consistent with where most observers thought the case was going following oral argument. It represents a moderate, compromise position–and a correct one, in my opinion.

Generally speaking, appellate courts lay out broad legal principles which then are applied to specific cases by trial courts. Most often, that is the decisive stage, and the important decision is the one rendered by the jury. This case deviated from the norm because it was driven not by conventional legal practice, but by the Democrats’ determination to bring it to trial quickly so as to get a guilty verdict against Trump before November’s election. That plan has been foiled by the Supreme Court’s reasonable approach.

The case may not be moot, however. If Trump loses, the Democrats’ vendetta against him will continue, and it is impossible to say how an ongoing criminal prosecution, conducted consistent with the guidelines the Court issued today, might turn out.

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