Former president Donald Trump celebrated Monday’s Supreme Court decision, but the opinion contains a silver lining for Special Counsel Jack Smith, says BU LAW’s Jed Shugerman: trying Trump in the court of public opinion before the November election. Photo via AP/Evan Vucci

Business & Law

BU LAW Expert Says Supreme Court’s Immunity Decision Is a “Constitutional Embarrassment”

6-3 ruling gives former president Trump broad protection from prosecution, says LAW’s Jed Shugerman

The Supreme Court ruled on Monday that presidents have “absolute” immunity for official acts, but no immunity for unofficial acts—a decision that complicates the federal case against former president Donald J. Trump for trying to subvert the 2020 election. 

Justices split 6-3 along ideological lines in the highly anticipated decision. Chief Justice John Roberts wrote the opinion for the majority. The court sent the case against Trump back down to the lower courts to determine whether Trump’s actions leading up to January 6, 2021, were performed in his official capacity as president or unofficially as a private citizen. 

“I mean, this opinion is an embarrassment,” says Jed Handelsman Shugerman, a law professor and Joseph Lipsett Scholar at the Boston University School of Law. “It’s a historical, constitutional embarrassment. It is incoherent. It is hard to decipher.” 

The court, and Roberts in particular, Shugerman says, should have fought hard to find consensus on a hugely consequential case against a former president such as this. He points out that when the Supreme Court was called upon to render a decision re President Richard Nixon regarding Watergate, it issued an 8-0 decision (William Rehnquist recused himself, as he had previously served in the Nixon administration), which signaled a strong, unified position on the weighty matter.

“For the sake of deciding that case with unanimity, they found room for consensus to get to eight. It is clear to me that there was an opportunity to write an opinion with more consensus here,” Shugerman says, “but Roberts, I think, showed both stubbornness and disregard for constitutional methods and the court’s legitimacy by writing such an embarrassment.” Shugerman is currently working on two books on the history of executive power and prosecution in America.

In the case at the heart of Monday’s decision, Trump v. United States, the former president was charged with three counts of conspiracy and one count of obstructing an official proceeding, all related to his efforts to stay in power after his defeat in the 2020 presidential election. 

Trump and his lawyers contended that he was entitled to absolute immunity from the charges, based on a broad understanding of the separation of powers and a 1982 Supreme Court precedent that recognized such immunity in civil cases for actions taken by presidents within the “outer perimeter” of their official responsibilities.

Lower courts rejected these claims. The ruling by the Supreme Court will certainly delay the case against Trump, as a Washington, D.C., federal district court judge wades through the many allegations in the special counsel’s indictment to determine whether Trump’s actions stem from his official capacity or not. Indeed, the ruling may delay the trial so much as to make it almost moot—if Trump wins office in 2024, he could instruct the Justice Department to drop the charges against him.

Trump posted a triumphant message, in typical all-caps fashion, on his social networking site Truth Social following the Supreme Court’s decision: “BIG WIN FOR OUR CONSTITUTION AND DEMOCRACY. PROUD TO BE AN AMERICAN!”

Others, mostly Democrats, reacted to the decision with dismay. Eric Holder, Jr. (Hon.’10), who served as attorney general under former president Barack Obama, wrote on social media that “our democracy has been severely wounded.” 

In a strongly worded dissent, Supreme Court Justice Sonia Sotomayor wrote, “Looking beyond the fate of this particular prosecution, the long-term consequences of today’s decision are stark. The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. This new official-acts immunity now ‘lies about like a loaded weapon’ for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation.” 

While it’s exceedingly unlikely that Special Counsel Jack Smith will have time to hold a jury trial against Trump before the election, there is a silver lining, Shugerman says. Monday’s decision leaves enough ambiguity that Smith could use the evidentiary hearings in Washington as a way to hold Trump accountable in the court of public opinion. 

Roberts, in the majority decision, spells out that the president’s immunity comes in two forms: absolute immunity for “core constitutional powers” and presumptive immunity for “remaining official actions.” Roberts writes that the president’s supervision of the Justice Department falls into the first category, as does his implicit power to remove executive officials. (It’s worth noting that Shugerman—along with some other historians and constitutional lawyers—disagrees with the court’s interpretation of those two powers.) 

Still, and crucially for Smith, the court declined to wade into much discussion of what else, exactly, falls into the first category. 

“It only touches those two areas as examples of core exclusive presidential powers. Everything else—something like 90 percent of the case against Trump—is beyond those two areas,” Shugerman says. “Instead of thinking about it as trying the case before a jury, Smith can try the case as an evidentiary hearing in the court of public opinion.”

After all, there’s nothing to stop the federal district court judge from holding hearings from September through October, during which Smith would make the case—for all to hear—against Trump as his actions relate to January 6. 

“The timing of these evidentiary hearings could be quite bad for someone trying to run for president,” Shugerman says.