Supreme Court Says Presidents Covered by Limited Immunity

Under our constitutional separation of powers structure, the nature of presidential power means that former presidents are entitled to absolute immunity from criminal prosecution for acts that fall within the scope of their definitive and exclusive constitutional authority, and to at least presumptive immunity for all official acts. No immunity is available for unofficial acts.

Chief Justice John Roberts, writing for the Supreme Court’s conservative majority, said:

This case raises a question of enduring importance: When can a former president be prosecuted for official acts taken while in office? Our nation has never needed that answer before. But in addressing the question today, unlike the political branch and the public at large, we cannot afford to fixate solely or primarily on the emergency of the present. In a case such as this, a focus on “temporary results” could have significant implications for the separation of powers and our nation’s future.

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The president does not enjoy immunity from prosecution for informal acts, and not all of his actions are official. The president is not above the law. But Congress cannot criminalize the president’s actions in carrying out executive responsibilities under the Constitution. And the system of separation of powers designed by the Framers of the Constitution has always required an active and independent executive branch. Thus, the president may not be prosecuted.
Because the President exercised core Constitutional powers, he enjoys, at a minimum, presumptive immunity from prosecution for all official conduct, an immunity that applies equally to all Oval Office staff, regardless of politics, policy, or party affiliation.

Justice Sonia Sotomayor wrote in dissent for the Court’s three liberals:

At no time in our nation’s history has there been reason to believe that a president could escape criminal responsibility.
If he used his professional privilege to violate criminal law, he is unlikely to be prosecuted.
The President is covered by such immunity. If the person holding that office abuses public power for personal gain,
The criminal laws that we must follow will not provide a backstop.

Out of concern for our democracy, I oppose it.

The case will be remanded, which will likely result in some or all of the charges the former president faces in federal court in Washington, D.C., related to the January 6 attack on the Capitol being dismissed.