How SCOTUS Just Blew Up Jack Smith’s Prosecution
The conservative majority didn’t just give Trump a huge reprieve, it made it increasingly unlikely that future prosecutors would even bother to go after a president violating the law.
ON MONDAY MORNING, a 6–3 majority of the Supreme Court announced that Special Counsel Jack Smith—and not Donald J. Trump—is the true threat to American democracy.
So the justices all but shut him down.
In his majority opinion in Trump v. United States, Chief Justice John Roberts insisted that the normal checks and balances in place to stave off rogue prosecutors—such as affirmative defenses, motions to dismiss, and the practical difficulties of securing jury verdicts without actual evidence—aren’t good enough for former presidents. Prosecutors cannot be trusted to act in good faith, Roberts more or less concluded. So the “conservative” majority effectively injected a new provision into Article II of the Constitution that gives presidents a presumption of absolute immunity from prosecution for official acts, even if done corruptly or in violation of the criminal laws.
In her dissenting opinion, Justice Sonia Sotomayor summed it up this way: “The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution.”
We don’t need to imagine the threats that Sotomayor is foreshadowing here. We lived through a president who acted with the mindset of a tyrant, one who stoked a bloody insurrection after other machinations to steal an election failed. At the end, even the Republicans who had tired of Trump were making the case that the legal system would serve as a check on him.
Now, that guardrail has been significantly diminished. And the American people will be left to rely on the delusional belief that future presidents will choose to act in good faith with their own conscience as a guide rather than abuse the virtually unlimited power the radical majority just gave them.
That’s the future. As for the now, here is what the ruling means.
The Court didn’t give much guidance for what constitutes an unofficial act that could give rise to criminal liability for former presidents. But it made a few important pronouncements that are all huge wins for Trump, who is facing multiple felony counts in Washington, D.C., Florida, and Georgia arising, to some degree, from acts taken while he was still president.
The federal January 6th case brought by Smith, which produced the dispute before the Supreme Court, now goes back to the trial judge for a two-step process.
First, Smith’s team must parse the evidence underlying the four federal criminal counts. Roberts makes clear that immunity does not extend just to the actual charges—it extends to the evidence itself, which cannot see the light of day before a jury. Smith needs to revisit the evidence from which prosecutors and the grand jury concluded that there is proof beyond a reasonable doubt that Trump committed multiple felonies, cross off that list the things that the majority held were clearly immune and off-limits for Smith, and then decide if the remainder qualifies as sufficient proof to move forward with any of the four counts against Trump.
If not, the Department of Justice will have to withdraw the indictment—or parts of it—altogether. If prosecutors conclude that there’s still enough admissible evidence to persuade a jury, there will be a new round of motions parsing that remaining evidence.
Of course, Trump’s lawyers will argue it’s all official conduct, and the DOJ will argue the contrary. U.S. District Judge Tanya Chutkan will make a ruling. That will be appealed to the U.S. Court of Appeals for the D.C. Circuit, and possibly appealed again for rehearing en banc by all the appeals judges of that circuit, and then potentially back up to the Supreme Court. The conservative majority will then decide what is and is not official conduct for presidents and what is immune from the rule of law.
This means months—if not years—of further delays of the trial date, assuming Trump doesn’t win in November. If he does, he’ll call the entire thing off on January 20, 2025.
THE SAME PROCESS will happen in the already-stalled prosecution in Florida for Trump’s alleged taking of classified documents from the White House and obstructing the FBI’s attempts to get them back. The packing up of boxes happened while he was president, so Judge Aileen Cannon will have to slice and dice that indictment as well, which she will undoubtedly relish, as she’s been making up reasons to delay the trial indefinitely already.
In the Georgia election interference case, the state court judges will likewise have to decide what parts of Trump’s conduct must be cut out of the case because the Supreme Court resolved this dispute under the U.S. Constitution, which is the law of the land, including for state court judges and state prosecutions.
Even the “hush money” trial recently that recently concluded in Manhattan with Trump’s conviction on 34 felony counts could be affected by the Supreme Court’s ruling. Trump paid some of the reimbursement checks to Michael Cohen directly from the Oval Office, so it’s no surprise that Trump’s lawyers on Monday asked the judge in the case if they could file a motion calling for the verdict to be set aside; this comes a week before his scheduled sentencing.
ROBERTS REFUSED TO GIVE any assurances that anything in Jack Smith’s January 6th case against Trump is “unofficial” and thus open for use by the prosecution. Roberts did, however, draw red lines around some of Trump’s conduct as official.
Everything in the indictment concerning Trump’s attempts to use the Department of Justice to back up his election denial and to support his attempt to change its outcome is now likely inadmissible. Because instructing the DOJ to do certain things and hiring and firing its leadership are core constitutional functions of the presidency, it’s impossible, according to the Court’s reasoning, to second-guess whether the president used those powers illegally—or at least if he does, he can’t be indicted for it.
That doesn’t just impact Smith’s team. It gives a green light for a potential future Trump administration, with allies of the former president already openly discussing using the DOJ to settle political scores.
Roberts also wrote that most of Trump’s public communications are likely immune from prosecution. The same goes for his conversations with Mike Pence in which Trump pressured his then-vice president not to certify the election results. Roberts did not contend with the obvious fact that Trump was asking Pence to do something that was not legal. Instead, he went out of his way to make clear that the motives behind a president’s official acts cannot be probed at all. So whether Trump, in a second term, talks to his attorney general about efforts to fight terrorism or about making up fake criminal charges against a member of the media critical of him will be irrelevant. Both get immunity.
The majority opinion does not specify any particular allegation that isn’t covered by either absolute or presumptive immunity. But what might not be immune (the justices alone get to decide where to draw the line at some moment in a future appeal) are interactions with state officials regarding the election (i.e., changing votes); a small category of comments to the general public; Trump’s conversations with Pence to the extent that they bear on the Senate’s role in the certification of the election rather than the president’s Article II power to enforce the law (whatever that means); and Trump’s statements as a candidate for office or party leader (in this case, select tweets and brief snippets of the speech he made on January 6th).
For democracy writ large, the ruling’s implications are dire.
The Framers rejected an unlimited monarchy in which kings ruled by divine right and could do no legal wrong. That is pretty much out the window now, because overcoming the presumption of immunity and identifying the shred of presidential activities that could conceivably be deemed unofficial will be daunting.
It was hard enough to get over the public presumption against prosecuting a former president this round. But ultimately, Trump’s transgressions around January 6th and the classified documents matter were just too severe to overlook. The Supreme Court’s decision today likely means that future prosecutors probably won’t even try.
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