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The Supreme Court handed down a landmark decision Monday granting Donald Trump partial immunity from special counsel Jack Smith’s election subversion case, handing the former president a significant win during his reelection bid.
Though the 6-3 ruling technically allows Smith to inch the prosecution toward resolution, the majority opinion from Chief Justice John Roberts left many technical questions unresolved – making it increasingly unlikely that a trial can get underway before the November election.
“The president is not above the law,” Roberts wrote for the conservative majority. “But Congress may not criminalize the president’s conduct in carrying out the responsibilities of the executive branch under the Constitution.”
Smith’s case now returns to lower courts, which must review the specific steps Trump took to overturn the results of the 2020 election and whether those actions were official, and therefore receive immunity, or private, and do not.
Here’s a look at the key takeaways from a historic decision:
In several key respects, Trump got what he wanted from the 6-3 court – and more.
For starters, the Supreme Court ruled that for “core” presidential activity, Trump has the absolute immunity he had sought. The majority said that Trump’s conversations with the Justice Department – his efforts to try to get officials on board with his effort to overturn the election – were covered with absolute immunity.
For other official actions and more routine powers held by the president, the court said there is at least some immunity and it largely deferred to lower courts to sort that out. That’s a process that could take weeks or even months.
The analysis about what’s immune and what isn’t “ultimately is best left to the lower courts to perform,” Roberts wrote.
Perhaps even more important, the majority made clear that official acts cannot be considered at all as evidence in a potential trial, which could make it much harder for Smith to prevail.
Roberts also wrote that the lower courts may not consider a former president’s motive, which may allow Trump’s attorneys to argue that the he wasn’t attempting to overturn an election in his favor at all.
With the justices giving the lower courts some limited guidance, the next steps are likely to be more hearings, written arguments and even proceedings with witness testimony and debates over evidence before US District Judge Tanya Chutkan in Washington, DC.
Those are likely to come in the days after the Supreme Court hands the opinion down formally to the federal courts in DC. The mechanism for sending a case back down usually takes about as long as a month, but the high court could act more quickly.
Once Chutkan works through the legal issues, it’s possible that more appeals of her preliminary decisions could put the case on hold again – adding in significant delay.
The court’s three liberal justices pulled no punches, with two written dissents excoriating the majority opinion as an appalling affront to the nation’s long-held principle that no one is above the law.
That principle, Justice Sonia Sotomayor wrote, was washed away by a ruling that means that in “every use of official power, the President is now a king above the law.”
Joined in full by the court’s two other liberal members, Sotomayor, the court’s senior liberal, wrote that the majority was relying on “misguided wisdom” to give Trump “all the immunity he asked for and more.”
She was especially critical of the decision to not allow prosecutors to use anything done by Trump that is shielded by immunity as they try to convince a jury to convict him over unofficial acts.
“That holding,” the justice said, “is nonsensical.”
Sotomayor went on to list “nightmare scenarios” involving illegal conduct by a future president that would, she argued, be shielded from criminal prosecution under the court’s ruling.
Honig says this is why Trump’s trial won’t happen before the election
“Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune,” she wrote.
Sotomayor took the rare step of reading her dissent from the bench on Monday in a move that underscored how aggrieved the liberal bloc of the court is. “With fear for our democracy, I dissent,” she wrote at the end of her 30-page dissent.
Justice Ketanji Brown Jackson penned a solo dissent in which the court’s newest member said the majority ruling “breaks new and dangerous ground” by granting immunity “only to the most powerful official in our government.”
Justice Amy Coney Barrett, Trump’s last appointee to the high court before leaving office, expressed frustration with how the court was sending the case back to lower courts for more proceedings and more delay in a short concurrence that failed to gain support from any of her colleagues.
In a significant break from the court’s other conservatives, Barrett seemed to suggest Trump should go to trial quickly.
“I would have framed the underlying legal issues differently,” Barrett said.
She suggested that because Trump’s wholesale challenge to the indictment had failed, at least some of the case could go forward.
The conservative justice wrote that “a President facing prosecution may challenge the constitutionality of a criminal statute as applied to official acts alleged in the indictment.”
“If that challenge fails, however, he must stand trial,” Barrett wrote.
The justice took issue with how the court had ruled that evidence from Trump’s official acts should be excluded from the trial, writing that there was no reason to depart from the “familiar and time-tested procedure” that would allow for such evidence to be included.
There was a clear tension through the course of the case between justices who wanted to limit the decision to the facts surrounding Trump’s effort to overturn the election and the broader concerns about presidential immunity for all future presidents.
In the end, Roberts repeatedly framed the court’s decision as one made for posterity rather than any single president.
The immunity the court found, he wrote, “applies equally to all occupants of the Oval Office, regardless of politics, policy, or party.”
The immunity case, he wrote, “poses a question of lasting significance.” In answering that question, he said, “we cannot afford to fixate exclusively, or even primarily, on present exigencies.”
But given the timing, it was unlikely to be viewed that way by many Americans. The decision landed in the middle of a presidential election featuring the first former president ever convicted of a felony crime.
“On purely partisan lines, the Supreme Court today for the first time in history places presidents substantially above the law,” said David Cole, national legal director of the American Civil Liberties Union who has repeatedly argued before the justices. “The opinion also sits like a loaded weapon for Trump to abuse in the pursuit of criminal ends if he is reelected.”
Conservative Justice Clarence Thomas added a concurrence to raise questions about whether Attorney General Merrick Garland violated the Constitution when he appointed Smith as special counsel.
Pushing the fringe legal theory about the legality of Smith’s appointment in 2022 has been part of Trump’s defense strategy in his classified documents criminal case in Florida, which also was brought by the special counsel. Trump’s attorneys have argued that Garland does not have legal authority to appoint someone as special counsel who hasn’t been confirmed by the Senate.
Thomas, too, appears to support that argument.
“And, there are serious questions whether the Attorney General has violated that structure by creating an office of the Special Counsel that has not been established by law. Those questions must be answered before this prosecution can proceed,” Thomas wrote in his concurrence. “The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding.”
Trump has also argued that he should be immune from prosecution since he was previously impeached and acquitted by the Senate, therefore creating a double jeopardy situation.
But in one rare win for the special counsel, the court said that argument had no merit.
Addressing Trump’s claims, Roberts wrote that a president who evades impeachment for one reason or another,” such as by resigning from office before an impeachment proceeding got underway, would “never be held accountable for his criminal acts.”
“Impeachment is a political process by which Congress can remove a president,” Roberts wrote. “Transforming that political process into a necessary step in the enforcement of criminal law finds little support in the text of the constitution or the structure of our government.”
This story has been updated with additional details.
CNN’s Katelyn Polantz contributed to this report.
