The conservative-majority U.S. Supreme Court on Monday sent back to lower courts the question of Donald Trump’s criminal immunity as a former president, further delaying his federal trial in Washington.
By a vote of six to three, the six conservative justices against the three progressives, the Court held that “the president enjoys no immunity for his unofficial acts” but that he “is entitled to at least a presumption of immunity for his official acts.”
In what context does this decision take place?
In July 2023, Donald Trump indicated that he had received a letter from Attorney General Jack Smith informing him that he was personally targeted by the federal investigation into attempts to reverse the results of the 2020 presidential election, won by Joe Biden, and in particular the assault on the Capitol on January 6, 2021.
A month later, he was indicted for “conspiracy against the American state”, obstruction of an official procedure and violation of electoral rights. His federal trial was to be held on March 4, 2024 in Washington, but Donald Trump had invoked criminal immunity as a former president to escape it.
This is the question that the Supreme Court finally took up and its decision had been awaited for several months.
What does this change for Donald Trump?
By holding that “the president enjoys no immunity for his unofficial acts” but that he “is entitled to at least a presumption of immunity for his official acts,” the Court thus rejected the Republican billionaire’s request for “absolute criminal immunity.” But it is sending back to lower courts the burden of deciding what constitutes an official act or not, which will delay the holding of a federal trial.
By deciding on February 28 to take up this question, and then by scheduling the debates for almost three months later, the highest court in the United States had already considerably postponed the judicial fate of the former Republican president. The entire procedure for this trial, postponed indefinitely, had already been suspended for four months.
During the debates, if the judges were generally skeptical of the absolute immunity claimed by the Republican candidate, several, particularly among conservatives, insisted on the long-term repercussions of their decision.
“We are writing a rule for posterity,” Neil Gorsuch had observed, referring to the unprecedented nature of the issue. “This case has enormous implications for the future of the presidency and the country,” added his colleague Brett Kavanaugh.
Why is this strategic on the part of the ex-president?
Targeted by four separate criminal proceedings, Donald Trump is pulling out all the stops to be tried as late as possible, in any case after the presidential election.
He was already found guilty on May 30 by the New York courts of “aggravated accounting falsification to conceal a conspiracy to pervert the 2016 election.” His sentence will be pronounced on July 11. But this first criminal conviction, unprecedented for a former American president, in the least politically heavy of the four procedures, also risks being the only one before the vote.
Because through numerous appeals, Donald Trump’s lawyers have managed to postpone until further notice the other trials, at the federal level for withholding classified documents after he left the White House and before the courts in the key state of Georgia for electoral interference in 2020.
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If re-elected, Donald Trump could, once inaugurated in January 2025, order a halt to federal prosecutions against him.
He also considered that this decision was “a great victory for our democracy and our Constitution”, on his social networks. The Republican “thinks he is above the law”, accuses Joe Biden’s campaign team, believing that the decision “does not change the facts (…): Donald Trump cracked after losing the 2020 election and encouraged a mob to overturn the results of a free and fair election”.
