The latest ruling gives the former president protection for "official" acts.
I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”
Are you new here? Get free emails to your inbox daily. Would you rather listen? You can find our podcast here.
Today's read: 13 minutes.
From today's advertiser: 10 Hidden Perks of Your Amazon Prime Membership.
Remember the days of paper lists and mall marathons? Then Amazon Prime came along like a shopping superhero. You're probably enjoying free shipping and exclusive shows, but there's more benefits you might not know about.
Amazon Prime offers more than just speedy delivery:
- Unlimited photo storage
- Free release-date delivery
- Early access to lightning deals, among other hidden benefits.
Make the most of your membership with these 10 hidden perks. Read more.
Quick hits.
- Hurricane Beryl strengthened to a Category 5 storm on Monday as it made landfall in the Caribbean. The storm is the earliest Category 5 storm observed in the Atlantic basin on record. (The latest)
- The Supreme Court ruled 6-3 to allow a suit over a 2011 rule on debit card fees that banks impose on merchants. The decision opens the door for additional lawsuits challenging other federal regulations. (The ruling)
- The House Judiciary Committee filed a lawsuit against Attorney General Merrick Garland to obtain the audio tapes from special counsel Robert Hur’s interview with President Joe Biden about his handling of classified documents. (The suit)
- Steve Bannon, former White House strategist for President Donald Trump, reported to prison on Monday to serve a four-month sentence for defying a congressional subpoena from the January 6 Committee. (The sentence)
- Lawyers for former President Trump filed a letter with Justice Juan Merchan, who oversaw the hush-money case in New York, asking that Trump’s conviction be thrown out in light of the Supreme Court’s finding that he has immunity for certain acts while in office. (The request)
Today's topic.
Trump v. United States. On Monday, the Supreme Court ruled 6-3 that former President Donald Trump is entitled to immunity from federal prosecution for his official actions while in office. The decision is the first Supreme Court ruling to assert that former presidents are shielded from criminal charges for actions deemed to be within their constitutional authority, though it also clarified that presidents do not have immunity for unofficial acts. The ruling, which fell along ideological lines, left open the possibility that special counsel Jack Smith’s case against Trump for allegedly conspiring to overturn the results of the 2020 election can continue. Lower courts will now decide whether Trump’s conduct in that case constituted official or unofficial acts, but the decision makes it unlikely that Smith’s case concludes before the presidential election.
Reminder: In August 2023, Smith indicted Trump on four felony counts for his actions leading up to and during the January 6 Capitol riots. The trial was initially scheduled for March 4, 2024, but it was delayed on Trump’s appeal to be declared immune from prosecution for any act taken as president. U.S. District Judge Tanya Chutkan rejected Trump’s immunity claim, and Smith subsequently asked the Supreme Court to rule on the question after Trump appealed to the U.S. Court of Appeals for the District of Columbia Circuit. The Supreme Court declined Smith’s request but later agreed to take the case after the appeals court similarly rejected Trump’s claim.
You can read our coverage of this case — including the previous rulings and a recap of oral arguments — here, here, and here.
Writing for the majority, Chief Justice John Roberts outlined three overarching scenarios in which presidential immunity does or does not apply. First, he found that presidents have absolute immunity for acts related to the powers explicitly granted to them by the Constitution. Second, he held that absolute immunity extends to acts “within the outer perimeter of [a president’s] official responsibility,” and a president cannot be charged unless the government can show that “applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’” Third, Roberts wrote that there is no immunity for a president’s unofficial acts.
Roberts noted that no court had yet established a test for “official” or “unofficial” acts, but he offered guidance on the question, reasoning that a president’s official responsibilities cover conduct that is “not manifestly or palpably beyond his authority.” He added that, in making the determination, courts cannot consider the president’s motives or designate an act as unofficial because it allegedly violates the law.
Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson dissented. Sotomayor wrote that the decision "reshapes the institution of the presidency,” calling the ruling an “atextual, ahistorical, and unjustifiable immunity that puts the president above the law." The three justices also argued that the majority ignored “settled understandings of the Constitution” in favor of an “expansive vision of presidential immunity that was never recognized by the Founders, any sitting president, the Executive Branch, or even President Trump's lawyers.”
On Monday, Trump called the court’s decision a “BIG WIN” for the Constitution and democracy, while President Joe Biden’s campaign said the court “just handed Donald Trump the keys to a dictatorship.”
Today, we’ll share what the right and left are saying about the decision, followed by my take.
What the right is saying.
- The right is supportive of the ruling, arguing strong immunity protections are needed for presidents to do their job effectively.
- Many acknowledge that the decision helps Trump but add that it will also benefit future presidents.
- Others say the majority’s reasoning is not supported by the Constitution.
The Wall Street Journal editorial board wrote “the Supreme Court protects the presidency.”
“Partisans on the left and right are reacting to Monday’s Supreme Court decision on presidential immunity based on how it affects the fate of Donald Trump. That’s a blinkered view that ignores the long-run implications for the American republic. The 6-3 Court majority rightly focuses on the institution of the Presidency, and the ability of all Presidents—not merely the last one—to act in the national interest free from prosecution for official acts,” the board said. Chief Justice Roberts offers “a nuanced ruling that is far from a total victory for Mr. Trump. The Court properly reads the Constitution to offer absolute immunity for actions within the core plenary powers of the executive.”
“Democrats on Monday denounced the Court for favoring Mr. Trump and complicating Mr. Smith’s prosecution. But the Court is doing its job of protecting the constitutional order. If they’d take a breath, Democrats would notice that the Justices made it more difficult for Mr. Trump to prosecute Mr. Biden. The immunity ruling underscores the mistake Democrats have made in using lawfare to disqualify a presidential candidate. They should have put more trust in the voters.”
In Newsweek, Mark R. Weaver called the decision “right for Trump and for the ages.”
“It's well settled in law that those in the judicial and legislative branches have significant immunity from lawsuits or prosecutions based on their official actions… In the case of criminal prosecutions of current or former government officials, some form of immunity is necessary to shield our leaders from political interference by other government actors with partisan or devious motives,” Weaver wrote. “This week's decision would have been met with a legal ‘well, duh,’ had it been made prior to our entire political discourse revolving around ardent love or desperate hatred of a single political player.”
“For all the doom and gloom in the dissent, the Supreme Court merely stated the obvious and sent the case back to the district court, instructing it to weigh the facts and evidence to determine if Trump's acts in the case were official or unofficial in his role as president. If that means he will avoid prosecution in the mistake-ridden case against him in the District of Columbia, that's just the way the separation of powers ball bounces,” Weaver said. “This case won't end the lawfare effort to defeat Trump in forums other than a national election, but it will, as Justice Neil Gorsuch predicted, speak to the ages.”
In The Washington Examiner, Quin Hillyer said the “Supreme Court grants Trump a malignant degree of immunity.”
“At first glance, the Supreme Court’s Monday decision on presidential immunity looked like an unwise overstatement of otherwise valid principles. At closer glance, it looks almost abominable,” Hillyer wrote. “If there is a future President Kamala Harris, the decision in Trump v. United States would make her frighteningly unpunishable in criminal court even for what otherwise would be massive illegalities. Fans of former President Donald Trump who are now celebrating the decision could find themselves obliterated on their own petards.”
“While Roberts pretends that this narrowing of immunity from ‘absolute’ to merely ‘presumptive’ is an important distinction, in practice, it is almost impossible to imagine any use of ‘official’ powers that poses no danger even to the outer limits of a president’s authority,” Hillyer said. “Roberts’s assertions can be found nowhere in the text of the Constitution itself. And unlike the few other non-textual applications of the Constitution that are nonetheless quite obviously implicit in the Constitution’s very structure, such as the ‘separation of powers,’ the assertion of presidential immunity this broad isn’t obviously implicit but implicit only through a few degrees of creative extrapolation.”
What the left is saying.
- The left is outraged by the ruling, suggesting it creates a daunting bar for prosecuting presidential misdeeds.
- Some say the court just destroyed one of the fundamental checks on executive power.
- Others say there are still ways to publicly litigate the core allegations of Trump’s case.
The Washington Post editorial board said “the Trump immunity decision isn’t the end of democracy — but it is bad.”
“The implications are much bigger than Mr. Trump. More important — and more alarming — are the potential long-term consequences that could persist well after Mr. Trump is gone,” the board wrote. “The decision… prohibits [prosecutors] from using any evidence related to official acts to prove charges related to unofficial acts. That’s only one example of how troublingly broad the Supreme Court’s new presidential immunity standards are. By declaring motive irrelevant in assessing presidential liability for a crime, the majority invited questions about whether all kinds of abominable violations are now fair game.”
“Ex-presidents can still conceivably be punished for those official acts that don’t relate to a president’s core responsibilities — if prosecutors can convincingly argue that punishment wouldn’t hinder a vigorous executive branch… courts could also continue to order the executive branch to halt improper activity, as they do regularly, regardless of whether the president is locked up after leaving office for the misconduct,” the board said. “So it is up to the courts, including the highest in the land, to ensure the nightmare scenarios the critics have dreamed up do not manifest. The trouble is, this week’s opinion invites presidents to push the boundaries.”
In Slate, Mark Joseph Stern argued “the Supreme Court just made the president a king.”
“The Supreme Court’s conservative supermajority fundamentally altered American democracy on Monday, awarding the president a sweeping and novel immunity when he weaponizes the power of his office for corrupt, violent, or treasonous purposes. This near-insurmountable shield against prosecution for crimes committed while in office upends the structure of the federal government, elevating the presidency to a king-like status high above the other branches. The immediate impact of the court’s sweeping decision will be devastating enough, allowing Donald Trump to evade accountability for the most destructive and criminal efforts he took to overturn the 2020 election. But the long-term impact is even more harrowing.”
“The fundamental problem with Trump’s legal theory is that it has absolutely no basis in the text of the Constitution, history, or tradition. The Framers knew how to grant immunity to officeholders—they did it for members of Congress—yet expressly declined to immunize the president. So Chief Justice John Roberts, writing for the majority, located this nonexistent rule in, for lack of a better word, a vibe ostensibly expressed by bits and bobs of the Constitution,” Stern said. “All future presidents will enter office with the knowledge that they are protected from prosecution for even the most appalling and dangerous abuses of power so long as they insist they were seeking to carry out their duties, as they understood them.”
In The New York Times, Andrew Weissmann wrote about “how to get voters the facts they need without a Trump Jan. 6 trial.”
“All is not lost. A trial might not happen, but a legal proceeding that will give voters some of what they want and need could still take place,” Weissmann said. “Judge Tanya Chutkan of U.S. District Court in Washington is now authorized to hold, in short order, an evidentiary hearing, replete with important witness testimony. That hearing would not replace a full trial and verdict — but at this point it is the best and last means to make public crucial evidence for voters to hear before Election Day… Judge Chutkan can hold a prompt hearing on the key issues left open by the ruling: what allegations in the indictment are core official functions entitled to absolute immunity and which are not.”
“A model for such a hearing can be found in the Georgia state and federal courts that wrestled with an analogous factual issue, namely whether Mr. Trump’s chief of staff, Mark Meadows, could move his case to federal court because he was acting in an official executive branch capacity when he helped arrange a call with Georgia election officials to discuss the outcome of the presidential vote,” Weissmann wrote. “A factual hearing by Judge Chutkan… would permit the airing, in an adversarial proceeding with full due process for Mr. Trump, evidence that goes to the heart of the most profound indictment in this nation’s history.”
My take.
Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. Write in by replying to this email, or leave a comment.
- I’m not surprised by this ruling, but I think it’s deeply flawed both legally and practically.
- Regardless of how you feel about Trump, he should not have had more latitude for his conduct after the 2020 election; but this decision gives it to him.
- Supporters of this ruling may find it brings unexpected consequences.
I think this is the worst decision that has come out of this Supreme Court — both in legal clarity and practical impact.
When the U.S. Court of Appeals for the District of Columbia Circuit eviscerated Trump's argument, I said I thought they got it right. Then, I was shocked by how many justices on the Supreme Court seemed open to the idea of absolute immunity for presidents, and I left oral arguments feeling like this outcome — the court granting Trump and future presidents some kind of partial immunity — was this case’s most likely outcome. I was rather appalled by that prospect, but I’m not surprised by the result.
With only surface-level scrutiny, the court's decision raises all sorts of obvious problems. Before this ruling, a sitting president was already granted extraordinary power. Indeed, conservatives have long derided how much more power the executive branch has accumulated over the last century, and one of the checks on that authority has been the threat of criminal prosecution. Deciding what presidential actions are prosecutable by separating them into "official" and "unofficial" acts seems like a nearly impossible rule to parse.
As Chief Justice John Roberts himself proposed in oral arguments, consider a scenario where a president takes a bribe to appoint an ambassador. The "official act" of appointing the ambassador is part of the crime, and any jury should be able to hear about that act in the context of the crime — but are we really saying that a president can only be charged for taking the money? Or as Justice Sotomayor brought up in her dissent, is a president immune from using Seal Team 6 to assassinate a political opponent because commanding the armed forces is in their official duties? Drawing these lines is unnecessary and over-complicated, creating a whole series of cascading issues.
Crimes don’t become legal just because a president used their office to commit them. Richard Nixon has been pilloried in history for saying “If the president does it, it’s not a crime.” Now his administration’s White House counsel says this ruling would have protected him during Watergate.
To me, just as important as the legal ramifications is what this court is signifying in its response to Trump’s actions. Some may argue that his pressuring of election officials to find votes or his threats to fire people in the Justice Department weren't criminal, or that he didn't deserve to be prosecuted, or that prosecutors like Jack Smith and Fani Willis concocted complicated charges to try to get him behind bars or hurt him politically. These are all fair arguments, and much of what Trump did post-election is likely not criminal.
But no matter how you feel about Trump, I don't think anyone is really arguing that what he did in the wake of losing the 2020 election was good, or that he needed more latitude to act. Yet the court's response now effectively grants presidents that latitude to use their already extraordinary executive power without any repercussions. Irrespective of Trump, this ruling offends my sensibilities about what our country is supposed to stand for. Indeed, I think the opposite is likely more true: Those who support Trump or hate the people prosecuting him are driven to approve of this ruling because they don’t want to see him punished or see those people succeed.
I only ask the many Trump supporters who support this decision to pause and consider its implications for the current presidency. At this very moment, Biden's opponents and Republicans in Congress are accusing him of having used his power as vice president to enrich himself and his family through various foreign business deals. Presume that everything people have said about the “Biden crime family” is true; this ruling makes it easy for him to describe those alleged actions as “official acts” to defend a family member benefiting from some kind of arrangement with a foreign entity. Do you want President Biden to be unaccountable — outside impeachment or an election — for almost any action he takes in the next five months as president?
It’s nonsense.
The legal arguments aren’t much better. One of the most frustrating parts of this ruling is the majority's central reasoning. Roberts expressed concern that allowing criminal charges against a former president could impact their decision making, writing, “A President inclined to take one course of action based on the public interest may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office.” Somehow, this is framed as a bad thing. Actually, yes, I think presidents should consider whether what they are doing while in office is so illegal they could go to jail for it when they are no longer president. Granted, this approach may open any future one-term president running for re-election to attacks from an opposition party, but that hypothetical threat pales in comparison to the reality this ruling has left us with.
What does the court tell us constitutes official acts? Very little. Roberts says that delineating between the two is admittedly difficult, but official responsibilities cover "actions so long as they are not manifestly or palpably beyond his authority." Got that? If what you do isn’t "manifestly" or "palpably" beyond your authority as president, you are immune from prosecution. Clear as mud.
In some ways, the court just granted Trump, Biden, and all future presidents broader immunity than the kind Trump was even asking for. Remember, Trump’s team was arguing — in part — that he couldn't face further repercussions for any of his actions because he hadn’t been impeached. But the Supreme Court's decision didn't make any exception for impeachment. That means a president could be impeached for criminal behavior, kicked out of office, and still not face any criminal repercussions as a citizen for actions they took while in office.
And to be clear: I don't just blame the conservative justices for this outcome. They’re at the top of my blame pyramid, but special counsel Jack Smith deserves at least a modicum of scorn, too. Critics of Smith like The Washington Post's Jason Willick predicted this very outcome, suggesting he could have both gotten his case to trial before the election and to survive Supreme Court scrutiny if he focused it only on Trump's acts as a candidate seeking re-election. Now Smith's prosecution of both Trump and January 6 rioters has backfired spectacularly. I don’t have much criticism for Smith’s legal arguments, but if a prosecutor isn't landing cases that it seems like he should, there's good reason to at least question his tactics.
I'm often split in how I feel about a Supreme Court decision's outcome and its arguments. But not today. I think this ruling is a convoluted, nonsensical, and unworkable legal precedent that will damage the country. For a court that I've spent a lot of time defending, this is a disappointing and genuinely frustrating way to end their term.
Take the survey: What do you think of the Supreme Court ruling in Trump v. United States? Let us know!
Disagree? That's okay. My opinion is just one of many. Write in and let us know why, and we'll consider publishing your feedback.
Help share Tangle.
I'm a firm believer that our politics would be a little bit better if everyone were reading balanced news that allows room for debate, disagreement, and multiple perspectives. If you can take 15 seconds to share Tangle with a few friends I'd really appreciate it — just click the button below and pick some people to email it to!
Your questions, answered.
We're skipping the reader question today to give our main story some extra space. Want to have a question answered in the newsletter? You can reply to this email (it goes straight to my inbox) or fill out this form.
Under the radar.
The U.S. Justice Department has given Boeing until the end of the week to decide whether to plead guilty to a criminal fraud charge stemming from fatal 737 MAX plane crashes in 2018 and 2019. A guilty plea would require Boeing to pay an additional criminal fine of $243.6 million on top of the $243.6 million it already paid in a 2021 deferred-prosecution agreement (though this fine is still short of the roughly $25 billion requested by the families of the victims). In May, the Justice Department determined Boeing had violated that agreement by failing to establish a compliance program to prevent fraud. This week’s fraud charge adds to the aircraft maker’s troubles as it continues to grapple with the fallout from one of its fuselage panels blowing off mid-flight in January and a subsequent production slowdown. Bloomberg has the story.
Numbers.
- 336. The number of days since former President Donald Trump was indicted in the 2020 election interference case.
- 271. The number of days since Trump’s attorneys filed their original motion to dismiss the charges against him based on presidential immunity.
- 125. The number of days until Election Day.
- 62%. The percentage of Americans who think Trump should not have immunity for actions taken while president, according to a CBS News/YouGov poll in June.
- 33%. The percentage of Republicans who think Trump should not have immunity for actions taken while president.
- 90%. The percentage of Democrats who think Trump should not have immunity for actions taken while president.
- 70%. The percentage of Americans who think presidents generally should not have immunity for actions taken while in office.
- 55%. The percentage of Republicans who think presidents should not have immunity for actions taken while in office.
- 84%. The percentage of Democrats who think presidents should not have immunity for actions taken while in office.
The extras.
- One year ago today we had just published a Friday edition about Pedro Gonzalez and online racism.
- The most clicked link in yesterday’s newsletter was the Supreme Court ruling on Trump’s immunity.
- Nothing to do with politics: The difference between grasshoppers and locusts.
- Yesterday’s survey: 958 readers answered our survey about the Supreme Court ruling on Chevron deference with 49% supporting the decision and outcome. “I work in a field that has been heavily impacted by the Chevron deference for years. The Court was right to strike it down because Chevron has led to lazy, imprecise rule-making. That will hopefully change now,” one respondent said.
Have a nice day.
90-year-old U.S. Air Force veteran Dillon McCormick worked at a grocery store in Louisiana, gathering shopping carts in the parking lot in the Louisiana heat. Karen Swensen, a woman who had previously worked as a New Orleans news anchor, noticed his efforts to support himself and created a GoFundMe to allow him to retire. “Mr. McCormick was born in 1933, making him a part of the Silent Generation. Please, America, let us be his voice. We can do this,” Swensen said when seeking donations for the GoFundMe. The campaign received over $200,000 within a day, enough to allow McCormick to retire. Good News Network has the story.
Don't forget...
📣 Share Tangle on Twitter here, Facebook here, or LinkedIn here.
🎥 Follow us on Instagram here or subscribe to our YouTube channel here
💵 If you like our newsletter, drop some love in our tip jar.
🎉 Want to reach 105,000+ people? Fill out this form to advertise with us.
📫 Forward this to a friend and tell them to subscribe (hint: it's here).
🛍 Love clothes, stickers and mugs? Go to our merch store!