The conservative-majority US Supreme Court on Monday referred the question of Donald Trump’s criminal immunity as ex-president to lower courts, further delaying his federal trial in Washington.
By six votes to three, those of the six conservative judges against the three progressives, the Court considers that “the president does not enjoy any 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 indicates that he received a letter from prosecutor 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,” obstructing an official process and violating electoral rights. His federal trial was scheduled for March 4, 2024, in Washington, but Donald Trump had invoked criminal immunity as a former president to avoid 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?
Considering that “the president does not enjoy any 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 request for “immunity absolute criminal law” invoked by the Republican billionaire. But it returns 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, then by scheduling the debates almost three months later, the highest court of the United States had already considerably postponed the judicial fate of the former Republican president. The entire procedure for this trial, postponed sine die, had already been suspended for four months.
During the debates, while 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 question. “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 former 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 appeals, Donald Trump’s lawyers managed to postpone other trials until further notice, at the federal level for withholding classified documents after his departure from the White House and before the courts of the key state of Georgia for election 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”, for his part accuses Joe Biden’s campaign team, believing that the decision “does not change the facts (…): Donald Trump broke down after losing the election of 2020 and encouraged a mob to overturn the results of a free and fair election.”
