COMPASS: SCOTUS Rules on Presidential Immunity

July 3rd, 2024

Good afternoon from Capitol Hill.

On Monday, the Supreme Court delivered its ruling in Trump v United States, regarding presidential immunity. 

By a vote of 6 to 3, the Court, in an opinion by Chief Justice Roberts, held that former presidents can never be prosecuted for actions relating to the core powers of their office. More broadly, the Court also found that there is at least a presumption that presidents have immunity for their official acts.

The decision leaves open the possibility that the charges brought against President Trump by Special Counsel Jack Smith – alleging that Trump conspired to overturn the results of the 2020 election – can still go forward if lower courts determine that the charges are based on his private conduct, rather than official acts. This, however, will take substantial time to determine.

Justice Clarence Thomas agreed with the majority’s immunity ruling, but wrote a separate concurring opinion questioning the constitutionality of Jack Smith’s appointment as special counsel.

 “No former President has faced criminal prosecution for his acts while in office in the more than 200 years since the founding of our country.” Thomas wrote. “And, that is so despite numerous past Presidents taking actions that many would argue constitute crimes. If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people. The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding.”

See more analysis from SCOTUSblog, Jonathan Turley on his blog, and Ed Whelan writing for National Review.

In a similarly significant opinion issued last Friday, the Supreme Court threw out charges against a former Pennsylvania police officer who entered the U.S. Capitol on January 6th. By a vote of 6 to 3, the Court held that an Enron-era paperwork law prohibiting the obstruction of official proceedings applies only to evidence tampering (e.g.: destruction of records or documents).

The ruling could affect charges brought by the Department of Justice against more than 300 other January 6th defendants, as well as two of the counts Special Counsel Jack Smith has brought against Donald Trump. 

Other notable recent opinions:

  • Murthy v Missouri and Moody v NetChoice, where the Court  sidestepped an opportunity to limit the government’s censorship of social media, while sending state based social media regulation laws back to the lower courts.
  • In Chevron v Natural Resources Defense Council, the Court took a hammer to a decades old doctrine known as “Chevron deference” which essentially gave the regulatory state unlimited power to interpret federal statutes in a way that maximized their own power. This decision, if it’s not circumvented by Congress simply writing more permissive statutes, has the power to limit the reach of federal officials into minute elements of everyday life.

The Court has ended its term, so we can all relax now until they meet again in October. 

Finally, about that debate last week. I will let others opine on the debate performance of President Biden and former President Trump. Instead, I will leave you with the reaction of liberal journalist Nellie Bowles, writing in The Free Press, which seems to capture the general sentiment of concern about the current ability of the President to govern from the left and right:

I think the question we all have to ask after tonight is simple: If this is Biden, who’s been running our country? Like, practically, who’s been doing the [actual] job of it? Jill Biden? The White House handyman? The interns? Karl Rove? A random Houthi? I’m not mad, I just want to know. Because the people who have been pushing to keep him in office certainly know he’s this bad, and they must like it that way. Weak and confused, he can be used, kept as a pet moderate. Interns, release the old man, just tell us your demands, and we can figure something out.

Have a wonderful Fourth of July!

The Latest From Around The Conservative Movement

One More Thing…

The fourth National Conservatism Conference will be held in Washington, DC next week, from July 8-10. CPI subscribers are entitled to a 20 percent discount on NatCon4 registration – when asked at the registration link “How did you hear about the conference?” please select “other” and enter “CPI” in the field. The discount is applied at checkout.

If you plan on attending, I’ll see you there! 

For more information on speakers, agenda, and to register, visit the conference website.