WASHINGTON —
The Supreme Court ruled Monday that former President Trump cannot be prosecuted for his official acts while in office, but left the door open slightly for his alleged efforts to overturn his 2020 election loss.
By a 6-3 vote, the justices upheld Trump’s claim that he was immune from all criminal charges related to his official actions while he was in the White House.
The three liberal justices dissented. The majority sent the case back to lower courts to determine if any of Trump’s actions involving the 2020 presidential election and effort to overturn President Biden’s election were unofficial and therefore subject to prosecution.
Before today, the Supreme Court had not ruled on whether a president or ex-president can be prosecuted for a crime.
The closest case came in July of 1974 when a unanimous court rejected President Nixon’s claim of executive privilege and ordered him to turn over this White House tapes to investigators pursuing the Watergate scandal.
The Justice Department had maintained it would not bring charges against a president while in office. Government lawyers said the Constitution’s only remedy for law-breaking president is impeachment.
But it had been long assumed that a former president could be indicted for crimes, including for actions that he took while in the White House.
Trump’s lawyers, however, argued that a former president was broadly shielded from prosecution for his “official acts.”
They also raised the specter of a partisan prosecution, since the former chief executive and this year’s Republican nominee for president is facing charges lodged by a Democratic administration whose president is running against Trump.
Atty. Gen. Merrick Garland appointed Jack Smith as a special counsel to investigate Trump’s role in the January 6, 2021 attack on the Capitol. And last year, he indicted the former president for allegedly conspiring to prevent the counting of electoral votes that confirmed President Joe Biden had won the election.
Trump called his supporters to come to Washington on Jan. 6 when Congress was meeting to certify Biden’s victory. He urged them to “stop the steal” and thousands of them rioted at the Capitol and broke into the building.
The special counsel hoped to bring the charges before a jury this spring, but Trump and his lawyers won several delays from the Supreme Court.
While Trump’s claim of absolute immunity was derided by legal experts, Special Counsel Smith and his lawyers took a similarly broad and unyielding position in the opposite direction. They said a former president had no immunity from criminal charges if a prosecutor won an indictment from a grand jury.
The special counsel’s position won before U.S. District Judge Tanya Chutkan, the assigned trial judge, and a three-judge panel of the U.S. Court of Appeals in Washington.
However, it soon became clear that special counsel’s position was not favored at the Supreme Court.
The justices refused in December and again in February to stand aside and to allow Smith to bring his case before a jury.
Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh had worked as White House lawyers. And like Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch, they came up in the post-Watergate era of contentious and highly partisan investigations of presidents and their top advisers.
They were wary of giving prosecutors from the current administration full freedom to bring criminal charges against the previous president.