How the Supreme Court Just Blew Up the Jack Smith Impeachment Case

ON MONDAY MORNING, the Supreme Court voted 6–3 to declare that Special Counsel Jack Smith, not Donald J. Trump, poses the real threat to American democracy.

So the judges basically silenced him.

In his majority opinion in Trump vs. United StatesChief Justice John Roberts insisted that the normal checks and balances used to deter rogue prosecutors—such as affirmative defenses, motions to dismiss, and the practical difficulties of getting a jury verdict without real evidence—weren’t good enough for former presidents. Prosecutors can’t be trusted to act in good faith, Roberts more or less concluded. So the “conservative” majority effectively inserted a new provision into Article II of the Constitution that gives presidents a presumption of absolute immunity from prosecution for official actions, even if done corruptly or in violation of criminal law.

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In her dissenting opinion, Justice Sonia Sotomayor summed it up this way: “The president of the United States is the most powerful person in the country, and arguably in the world. When he uses his official powers in any way, the majority reasoned, he will now be immune from criminal prosecution.”

We don’t have to imagine the dangers Sotomayor is threatening here. We’ve lived through a president who acted with the mindset of a tyrant, who stoked a bloody insurrection after other election-stealing schemes had failed. In the end, even Republicans who was fed up with Trump They argued that the legal system would control him.

Now that protective barrier has been significantly weakened. And Americans will have to rely on the delusional belief that future presidents will choose to act in good faith, guided by their own conscience, rather than abusing the virtually unlimited power that the radical majority has just given them.

This is the future. And as for the present, this is what the verb means.

The court did not offer much guidance on what constitutes an unofficial act that could subject former presidents to criminal charges. But it did issue several important statements that are major victories for Trump, who faces multiple criminal charges in Washington, D.C., Florida and Georgia that stem, in part, from acts he did while he was president.

The Jan. 6 federal case brought by Smith and at the heart of the Supreme Court argument now returns to the trial judge for a two-phase trial.

First, Smith’s team must review the evidence underlying the four federal criminal charges. Roberts makes clear that the immunity doesn’t just cover the charges themselves — it covers the evidence itself, which cannot see the light of day before a jury. Smith must reexamine the evidence that prosecutors and the jury used to conclude there was proof beyond a reasonable doubt that Trump committed multiple crimes, strike from that list the things that the majority found were clearly untouchable and off-limits to Smith, and then decide whether the rest qualifies as sufficient evidence to proceed with any of the four charges against Trump.

If not, the Justice Department would have to withdraw the indictment — or parts of it — in its entirety. If prosecutors conclude there is still enough admissible evidence to convince a jury, there would be a new round of motions analyzing the remaining evidence.

Of course, Trump’s lawyers will argue that this is all official conduct, and the Justice Department will argue the opposite. U.S. District Judge Tanya Chutkan will issue the ruling. It will be appealed to the U.S. Court of Appeals for the D.C. Circuit, and possibly appealed again for a retrial by all the appellate judges in that circuit, and then potentially back to the Supreme Court. The conservative majority will decide what is and is not official conduct for presidents, and what is protected from the rule of law.

That means months —if not flying—on further delays to the trial date, assuming Trump doesn’t win in November. If he wins, he would dismiss the entire case on January 20, 2025.

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THE SAME PROCESS will be at play in the already-stalled Florida trial for Trump allegedly taking secret documents from the White House and obstructing the FBI’s efforts to recover them. The box-packing happened while he was president, so Judge Aileen Cannon will have to slice and dice that indictment as well, which she will no doubt enjoy as she’s already coming up with reasons to indefinitely postpone the trial.

In the Georgia election interference case, state court judges will also have to decide which elements of Trump’s conduct must be excluded from the case because the Supreme Court decided the dispute based on the U.S. Constitution, which is the law of the land, including for state court judges and state prosecutors.

Roberts declined to offer any assurances that anything in the Jan. 6 case was “off the record” and therefore open to prosecution. But he did draw red lines around some of Trump’s official behavior.

Everything in the indictment about Trump’s attempts to use the Justice Department to support his denial of the election and his attempt to change its outcome is now arguably inadmissible. Because directing the Justice Department to do certain things and hiring and firing its executives are core constitutional functions of the president, there is no question, the Court reasoned, of whether the president used those powers illegally—or at least, if he did, he cannot be impeached for it.

Participation

It’s not just Smith’s team that’s affected. It’s giving the green light to a potential future Trump administration, with allies of the former president already openly discussing using the Justice Department to settle political scores.

Roberts also wrote that most of Trump’s public communications are likely immune to prosecution. The same is true of his conversations with Mike Pence, in which Trump pressured his then-vice president not to certify the election results. Roberts did not dispute the obvious fact that Trump was asking Pence to do something that was illegal. Instead, he went out of his way to make clear that the president’s motives behind official actions cannot be investigated at all. So it will be immaterial whether Trump, in a second term, talks to his attorney general about counterterrorism efforts or about inventing false criminal charges against a member of the media who criticized him. Both will be granted immunity.

The majority opinion does not identify any specific charge that is not covered by absolute or presumed immunity. But what power not be untouchable (only judges can decide where to draw the line at some point in a future appeal); interactions with state officials about the election (i.e., changing votes); a small category of comments directed at the public; Trump’s conversations with Pence to the extent that they concern the Senate’s role in certifying the election rather than the president’s Article II authority to enforce the law (whatever that means); and Trump’s statements as a candidate for office or party leader (in this case, select tweets and brief excerpts from his January 6 speech).

For democracy in general, the consequences of this ruling are tragic.

The framers of the Constitution rejected an unlimited monarchy in which kings ruled by divine right and could not make any legal mistakes. That is now practically out of the question, because overcoming the presumption of immunity and identifying scraps of presidential action that could be considered unofficial will be daunting.

It was hard enough to overcome the public presumption against prosecuting a former president this round. But ultimately, Trump’s misconduct around January 6 and the secret documents case were simply too serious to ignore. Today’s Supreme Court decision likely means future prosecutors probably won’t even try.