It has been a burning question among legal scholars ever since former President Donald Trump asserted absolute immunity for his acts while in office: Could a president assassinate a political rival with legal impunity?
The Supreme Court avoided giving a firm answer Monday, but some of the justices said they believe so — at least under the court’s new precedent.
In a 6-3 decision, the justices broke new legal ground, finding for the first time that a president enjoys “absolute immunity” for official acts taken within core presidential areas of responsibility and has presumptive immunity for many other official acts.
Chief Justice John G. Roberts Jr., writing for the six justices in the majority, declined to spell out exactly where all of those lines are drawn, saying it will be up to lower courts to decipher.
But Justice Sonia Sotomayor, writing the chief dissent, said offing a political rival would fall within the boundaries the high court set for core presidential actions.
“When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution,” she wrote. “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.”
Chief Justice Roberts dismissed those hypotheticals as “a tone of chilling doom that is wholly disproportionate to what the Court actually does today.”
“Conspicuously absent is mention of the fact that since the founding, no President has ever faced criminal charges — let alone for his conduct in office,” he wrote. “And accordingly no court has ever been faced with the question of a President’s immunity from prosecution. All that our Nation’s practice establishes on the subject is silence.”
He grounded the idea of immunity in the separation of powers, reasoning that it would subvert the powers of the president if Congress were able to criminalize executive branch responsibilities. Once he established that some acts cannot be prosecuted, he said the trick is drawing the lines.
“We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity,” the chief justice wrote in an opinion largely joined by his five fellow Republican appointees to the court.
The majority said core presidential powers include granting pardons and firing executive branch officers.
Chief Justice Roberts said the indictment against Mr. Trump that was before the justices, concerning his behavior surrounding the 2020 election results, charged four main acts: That he tried to rope his Justice Department into action to question some states’ vote counts; that he tried to get then-Vice President Mike Pence not to certify the results; that he tried to orchestrate alternate electors; and that he used social media to sour the rioters at the Capitol on Jan. 6, 2021.
The majority said communicating with the Justice Department is part of a core presidential duty, so Mr. Trump enjoys absolute immunity on that score. The other three areas require more argument in lower courts.
Since none of the charges involves Mr. Trump’s commander-in-chief powers, the majority didn’t opine on them.
The issue was raised by justices during oral arguments in the case, where Justice Sotomayor wondered about assassinations.
“If the president decides that his rival is a corrupt person and he orders the military or orders someone to assassinate him, is that within his official acts for which he can get immunity?” she prodded Mr. Trump’s lawyer.
John Sauer said the answer was maybe.
“It would depend on the hypothetical. We can see that could well be an official act,” he said.
Justice Ketanji Brown Jackson, who dissented in Monday’s ruling, said under the court’s new ruling, Mr. Sauer was right.
“Thus, even a hypothetical President who admits to having ordered the assassinations of his political rivals or critics … or one who indisputably instigates an unsuccessful coup … has a fair shot at getting immunity under the majority’s new Presidential accountability model,” she wrote.
Mr. Trump’s former Attorney General William P. Barr defended his old boss, saying Justice Sotomayor’s examples were false — and suggested the dissents “unfairly portrays the majority opinion.”
He told Fox News’ Neil Cavuto that immunity rests on a president’s authority, according to the high court’s ruling.
Mr. Barr said a president has the constitutional authority to direct a case be dropped, but he doesn’t have the authority to accept a bribe in doing so. He went on to say the president could direct his Department of Justice to investigate something, but he can’t fabricate evidence as part of that investigation.
“The worst example, I think, the one that makes no sense whatsoever is the idea he can use SEAL Team Six to kill a political opponent,” Mr. Barr said as he dismantled Justice Sotomayor’s dissent.
“The president has the authority to defend the country against foreign enemies, armed conflict and so forth. He has authority to direct the Justice Department against criminals at home. He doesn’t have the authority to go and assassinate people whether he uses the SEAL Team or a private hit man — it doesn’t matter. It doesn’t make it a carrying out of his authority, so all these horror stories are really false,” Mr. Barr said.
Democrats said the problems in the ruling go beyond questions of assassination.
Sen. Richard J. Durbin, Illinois Democrat and chair of the Judiciary Committee, said the ruling gives a president too much power over the Justice Department.
“In ruling that Donald Trump is ‘absolute immune from prosecution for the alleged conduct involving his discussions with Justice Department officials,’ the court has stripped the Justice Department of its valued independence and undermined its commitment to the rule of law,” Mr. Durbin said.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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