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What the Supreme Court ruling on presidential immunity means for Trump

MICHEL MARTIN, HOST:

We have a decision in the Supreme Court case that will determine whether former president Donald Trump is immune from prosecution. The court has ruled that a former president does have absolute immunity for his core constitutional powers while carrying out official acts but not for unofficial acts. In Trump v. The United States, Chief Justice John Roberts wrote for the 6-3 majority at stake was whether Trump could be prosecuted for his role in the January 6 mob attack on the Capitol where his supporters tried to disrupt the certification of the election. Trump claimed absolute immunity after special counsel Jack Smith charged him with conspiring to overturn the results of the 2020 election. Trump argued his actions taken while in office were immune from prosecution. We're to start with national justice correspondent Carrie Johnson, who has just gotten this ruling a few moments ago and has been working her way through it. Carrie, tell us what we know so far.

CARRIE JOHNSON, BYLINE: Yeah. This is a significant short-term victory for Donald Trump and his efforts to delay this trial in Washington, D.C. until after the November election. The court majority led by John Roberts along ideological lines has ruled Trump has absolute immunity for his core constitutional powers and that there's a presumption of immunity for his official acts. That could be things such as his contacts with the Justice Department and the run up to the last election. And there is no immunity for unofficial acts. But the court majority has sent this back down to the district judge to determine, action by action, which counts and which does not. All of that, Michel, is going to take time. And that means the prospect of a trial before the election is even more dim now than it was before.

MARTIN: Did the court define what core constitutional acts are, or for that matter, what constitute official acts or unofficial acts?

JOHNSON: They gave us some hints. Core constitutional powers are things like recognizing ambassadors, recognizing foreign governments. Official acts, a little squishier, but very likely, parts of this indictment against Donald Trump that deal with him allegedly conspiring with former Justice Department official Jeffrey Clark, those are probably out now. And they left open for the lower court the question of Trump's efforts to lean on then Vice President Mike Pence as well as state election officials and other private actors. This means that the lower court judge Tanya Chukin has a lot more work to do before this case is ready for trial, and the shape of the case could very much change between now and then.

MARTIN: And you've told us that there's a lot more work yet to do, but for people who may have missed the beginning part of our conversation, what does this mean for special counsel Jack Smith's case going forward?

JOHNSON: It means that the shape of the case may change. Some of the allegations in the indictment will not be allowed to be heard by a jury. And in fact, there's an important passage in this opinion I'm still teasing out that suggests that if Trump has immunity, if he is immune for certain things, that prosecutors cannot present evidence about any of that to a jury. That is in direct contradiction to what the special counsel want, and in other words, Even if Trump is allowed to do certain things and get away with them for criminal purposes, the special counsel want to be able to tell the jury Trump did X, Y or Z and he knew he had lost the election. Based on the majority decision here by the Supreme Court, it seems like some of those allegations are now out as well out of the case.

MARTIN: Or you want to talk about the political implications of this because it has escaped no one's attention that this is an election year. So joining us for that as senior Washington editor and correspondent Ron Elving. Ron, are you with us?

RON ELVING, BYLINE: Yes, I am, Michel.

MARTIN: And also with us is NPR senior political editor and correspondent Domenico Montanaro. Domenico, are you also here with us?

DOMENICO MONTANARO, BYLINE: I'm here.

MARTIN: All right. So Ron, let's go to you first. What does this mean for Trump's presidential run?

ELVING: Well, it gives him a clear runway, essentially. He can say that the Supreme Court has protected his rights as president and said that he has immunity for his official act. Now, of course, it may be determined down the road that some of the things that he did around January 6 were not official acts, and he could go to trial for that. It's conceivable. But it's not really conceivable that that's going to happen in timely fashion. It's going to take some months. And for that to all get resolved before November is very hard to imagine. But of course, we'll see, we'll let it play out, and if he were to lose in November, then a trial could still proceed and that could entail a sentence at some point or another that Donald Trump doesn't want to deal with. But that - right now, the question for politics is, how does that affect people's voting?

If they want to see this prosecuted, if they want to see Donald Trump held accountable under whatever terms the Supreme Court and the rest of the federal judiciary should set, if they want to see him held accountable, they want to see all the evidence that the grand jury sent - that the grand jury saw, rather, was shown, then they're probably not going to want to see Donald Trump reelected president because if he's reelected president, all of this is pretty likely to go away.

MARTIN: Domenico, what about that? Do we have any evidence of how the voters think about this issue in particular?

MONTANARO: Well, first, you said that it escaped no one's attention that this is an election year, but it certainly feels like it escaped the attention of the Supreme Court, I have to say, which acted with really zero sense of urgency here, leaving this decision until the very last day of its term, leaving it for months, and really now kicking it beyond the election inevitably. And Trump is going to be able to declare a major victory on this, as he already has. You know, look, as far as the politics and whether it affects people's voting, you know, not much has changed the course of this race, you know, for years.

People did say, though, that they might change their minds at the margins if Trump was convicted of crimes in any of these four criminal cases against him. We saw that already with the New York case where Trump was convicted of 34 felony counts. It has moved the polling at the margins a point or two, and that is very significant in a race that has been expected to be close. But these were the more sort of major cases dealing with January 6 at the core of what some of the biggest conduct problems that a lot of people who don't want Trump to be president have seen, and clearly now that's going to be off the table as a consideration for people.

MARTIN: I take your point on that Domenico. So I guess the question I would have for the - about the Biden campaign is has the Biden campaign made the Supreme Court an issue as part of their argument for - or these cases as part of their argument for why Mr. Biden needs to be returned to office?

MONTANARO: It certainly has, and to a broader extent, you know, used the Supreme Court certainly when it comes to abortion rights. I mean, and I don't think we can separate that out because it's clearly - January 6 and abortion rights are the two major issues that the Biden campaign is using to try to, you know, win reelection and say, despite, you know, whatever problems people have with Joe Biden and his performance at the debate that, you know, underscored some of those questions about his age and ability to do the job for four more years, to say, look at the broader framework here of who you want in office and for what priorities that that person would push through for you.

And, you know, the Supreme Court, really, a lot of people don't seem to vote on judges or foreign policy, and yet they're are two areas, I continue to say, that a president has a lot of control over. And, you know, former president Trump was able to appoint three justices to the Supreme Court, you likely would not have had the Dobbs ruling happen that overturned Roe v. Wade and you probably wouldn't have had this decision, certainly in the way that it was worded, or maybe in the timeline that it was taken, if you had Hillary Clinton win in 2016, for example, you know, and you have a totally different makeup of the court. That's an if, then, you know, woulda, coulda, shoulda (ph). But that is a consideration for voters for the kinds of things that a president has a legacy on. The Supreme Court is a major one, affects a social policy for generations.

MARTIN: Speaking of the future beyond the criminal cases against former president Trump, this opinion does create new precedent for all American presidents. So to talk about that, we've called Rick Hasen, a constitutional law professor at the University of California, Los Angeles. Professor Hasen, as I said, you're just working through this decision, it's a long one, it's complex, but what precedent do you think has been set for the future?

RICK HASEN: Well, this is a huge precedent. I mean, we're all focused on what this means for 2024 and for Donald Trump, but this is an opinion that greatly expands presidential power. What it does is it creates a - kind of a zone of immunity around the president for official acts and for things that are like official acts. It puts a huge thumb on the scale in favor of, you know, the president if there's ever any kind of criminal prosecution.

And importantly, it says that the kind of evidence that could be introduced in the event that the president is accused credibly of criminal conduct is quite limited so that the - you know, the kinds of evidence that you would actually need to prove that the president is engaged in criminal conduct, now the prosecutors would be hamstrung. So this is a big shift of power towards the president personally in potential prosecutions going forward.

MARTIN: I know that you're just working your way through the decision, but is there anything in it that really stands out to you or that surprises you?

HASEN: Well, I mean, the first thing that I thought of when I got to the end of the majority opinion is that while many of us were thinking, boy, the Supreme Court is really taking its time with this, it scheduled it two months after the, you know, they decided to take the case, they decided it at the very last day of the term, the court was saying that the lower courts went too quickly. They think this is something that has to be slow and deliberate. They don't care at all about the implications for potentially what Donald Trump had done in terms of trying to subvert the results of the last election. They are trying to do an opinion for the ages, but maybe at the price of ignoring the danger to democracy that's before us today.

MARTIN: Ron, a final question to you as briefly as you can - and I apologize 'cause it's a big question - what is your sense, as a person who studies - has studied presidents for years, how this decision will affect the decision making of future presidents?

ELVING: It has to open possibilities that many previous presidents never even imagined. And certainly, it's not hard to imagine Donald Trump already sees those possibilities, already sees that there are many things he could order people to do and be considered immune because they were official acts in his mind and perhaps that of the Supreme Court. Transcript provided by NPR, Copyright NPR.

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Michel Martin is the weekend host of All Things Considered, where she draws on her deep reporting and interviewing experience to dig in to the week's news. Outside the studio, she has also hosted "Michel Martin: Going There," an ambitious live event series in collaboration with Member Stations.
Carrie Johnson is a justice correspondent for the Washington Desk.
Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.
Domenico Montanaro is NPR's senior political editor/correspondent. Based in Washington, D.C., his work appears on air and online delivering analysis of the political climate in Washington and campaigns. He also helps edit political coverage.