Donald Trump kept the fact-checkers busy with his latest public remarks on Thursday. But one of his statements, regarding the Supreme Court’s immunity ruling, is worth scrutinizing. Indeed, the statement may turn out to have some truth to it — not due to Trump’s honesty, but rather due to the vague and sweeping nature of the ruling itself.
Standing outside of his New Jersey golf club, the GOP presidential nominee said, “As you know, the Supreme Court ruled recently on immunity, and I’m immune from all of the stuff that they charged me with.”
Yes, the Supreme Court ruled on presidential immunity recently (July 1, to be exact). So far, so good. But that he’s “immune from all of the stuff that they charged me with” is not what the court said in the federal election interference appeal.
Chief Justice John Roberts’ majority opinion said that there’s no immunity for unofficial acts, that there’s at least presumptive immunity for official acts, and that there’s absolute immunity for exercising the president’s “core constitutional powers.”
What does all that mean in practice? No one knows precisely, perhaps not even the Republican-appointed majority that laid out that new standard. The high court sent the case back to the trial court to figure it out “in the first instance.” So the extent that Trump’s immunity extends to the acts for which he’s being prosecuted is yet to be determined.
And whatever U.S. District Judge Tanya Chutkan decides in the first instance could wind up being vetted by the justices again before that trial can go forward. Of course, if Trump wins the election in November, then this may become legally moot, should he order the DOJ to withdraw his two federal criminal cases. (Special counsel Jack Smith is separately appealing U.S. District Judge Aileen Cannon’s dismissal of the federal classified documents case.) Both the timing and convoluted substance of the Supreme Court ruling, then, could amount to an effective grant of immunity to Trump if he’s able to crush his case before the Roberts Court even articulates more clearly the scope of that immunity.
In fact, the ruling’s full effect isn’t even known in his New York criminal fraud case, where he wasn’t charged with official acts and was found guilty before the immunity ruling came out. The issue there stems from another odd feature of Roberts’ ruling, which curbs the use of official acts as evidence to prove guilt of unofficial acts — a point Trump’s lawyers have cited in an attempt to overturn his guilty verdicts prior to sentencing.
Judge Juan Merchan in New York is set to rule on Trump’s immunity claim on Sept. 16 and sentence him on Sept. 18 if the immunity issue doesn’t stand in the way. But if Merchan rejects the immunity claim, Trump’s lawyers have signaled their intention to appeal immediately before any sentencing can happen — perhaps all the way to the Supreme Court.
In all of Trump’s criminal cases, then, the extent of his immunity is a fact that only a Supreme Court majority can know.
Subscribe to the Deadline: Legal Newsletter for updates and expert analysis on the top legal stories. The newsletter will return to its regular weekly schedule when the Supreme Court’s next term kicks off in October.
