The court’s necessarily complicated ruling on presidential immunity

Before Monday, there were no legal precedents for dealing with a former president who is charged with serious crimes committed while in office. The Supreme Court rarely faces a monumental decision in which this is the case.

But those upset by the 6-3 ruling in Trump v. United States should consider that the majority opinion, written by Chief Justice John Roberts, was written with an eye fixed firmly on the precedent the court was setting, and on the future of the presidency.

“This case poses a question of lasting significance: When may a former president be prosecuted for official acts taken during his presidency?” Roberts wrote in the syllabus. “In answering that question, unlike the political branches and the public at large, the court cannot afford to fixate exclusively, or even primarily, on present exigencies.”

By taking the long view, the court offered what is a first step in deciding cases against Trump that it has now remanded to lower courts. The matter is not resolved, although it is unfortunate that it is unlikely to be resolved before voters get a chance to consider Donald Trump on the ballot in November.

However, the winners and losers in this case are not as clear cut as some insist.

We agree with Yale law professor Stephen L. Carter, who wrote for Bloomberg that the former president was being premature in claiming victory after the decision, and that much of the media was too focused on what Trump got from the ruling, without considering what the prosecution got.

Yes, he wrote, part of the indictment against Trump will be dismissed. But “the court rightly rejected Trump’s absurd position that a former president can’t be prosecuted for his conduct in office unless he has been impeached and removed. The court also rightly rejected the absurd position of the special counsel that the president enjoys no immunity at all.”

Trump and all future presidents were granted immunity for official acts within his or her “conclusive or preclusive” authority under the Constitution. Presidents enjoy presumptive immunity for all official acts.

However, the ruling makes it clear that, “The president is not above the law.” The trick will be to distinguish between official and unofficial acts, which Roberts conceded, “can be difficult.”

Carter suggests the ruling offers a “major gift” to prosecutors.

Roberts wrote: “There may, however, be contexts in which the president, notwithstanding the prominence of his position, speaks in an unofficial capacity — perhaps as a candidate for office or party leader.”

This makes it clear that Trump or any other president cannot claim running for re-election as an official duty worthy of immunity.

However, a president can claim that speaking to the American people, and on behalf of them in an official capacity, qualifies as official conduct that enjoys immunity, and “courts may not inquire into the president’s motives.”

Yes, this ruling is complicated and messy. If Trump is elected in November, the cases against him may never be heard. He may order the charges to be dropped or attempt to pardon himself, another act that could get the court’s attention.

And yes, it feels as if the enormity of the Jan. 6 riot at the Capitol — which we said at the time was stoked by Trump tossing “verbal matches” on the fuel of his false claims that the 2020 election had been stolen — has been minimized.

In a scathing dissent, Justice Sonia Sotomayor wrote that the majority decision “will have disastrous consequences for the presidency and for our democracy.”

Roberts dismissed this as ignoring the separation of powers and “fear mongering.”

Instead, he wrote, he fears “an executive branch that cannibalizes itself, with each successive president free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next.”

A president cannot function if he or she is worried about being prosecuted after leaving office, and yet, presidents cannot be allowed to engage in illegal activity without consequences.

That is the unfortunate position in which the former president has placed the court and the nation. We hope the court never has to consider such a thing again.