‘Dangerous’ Supreme Court Decision Shields Trump from Criminal Prosecution: Where Are His Cases Now?

The Supreme Court’s landmark decision on whether Donald Trump should be immune from criminal prosecution for his actions while in office will likely torpedo his election interference trial.

On Monday, a 6-3 conservative majority of the justices ruled that Trump is immune from prosecution for “official” actions taken in his capacity as president, as described in the indictment against him.

It will now be up to a lower federal judge overseeing the case to hold hearings to determine whether the allegations — including Trump’s alleged plot to overturn Joe Biden’s victory and a pressure campaign targeting his vice president and state officials — constitute “official” or “unofficial” actions.

The Supreme Court has firmly stated that “there is no immunity for unofficial activities during the presidency.”

But the “outer perimeter” of the president’s duties must be afforded some immunity, the majority wrote. Trump’s communications with the Justice Department and other White House officials, allegedly to plot his bid to stay in power, are off-limits to prosecutors and can’t even be used as evidence, according to the ruling.

The case will be sent back to the U.S. District Court in Washington, where Judge Tanya Chutkan will be tasked with determining whether the actions listed in Trump’s indictment are “official” in nature.

It is likely that the protracted legal battle will continue to delay the trial and reduce the chances of it starting before Election Day or even after the president’s inauguration in January 2025.

The ruling — and the court’s decision to wait until the final day of the session to release it — ensures that voters will cast their ballots later this year without learning whether Trump acted as part of an illegal conspiracy to overturn the last election.

Trump’s contacts with people outside the White House and the federal government — including Georgia Secretary of State Brad Raffensperger, whom Trump has pressured to “find” votes to reverse his defeat in the state — will be reviewed.

This also means that the “fake electors” campaign and Trump’s alleged state-level campaign to reverse the election results can still be considered “off the record.”

Writing for the majority, Chief Justice John Roberts said the president has “broad authority to speak on matters of public concern” — including elections. But the president has “no role” in the states’ certification of elections, leaving Chutkan to conduct a “careful analysis” of the indictment to consider whether Trump’s actions are protected.

“Some of the allegations — such as those concerning Trump’s conversations with the acting attorney general — can be readily classified in light of the nature of the president’s official connection to that person’s office,” the court’s majority said.

“Other allegations — such as those involving Trump’s interactions with the Vice President, government officials, and certain private parties, and his comments to the public — raise more difficult questions,” the ruling added. “While we identify several issues relevant to classifying these allegations and determining whether they are subject to immunity, it is ultimately best to leave that analysis to the lower courts to conduct first.”

Prosecutors from Special Counsel Jack Smith’s office will also have the opportunity to examine whether Trump’s contacts with Mike Pence and other officials could be protected.

In August 2023, a grand jury voted to indict Trump on conspiracy and obstruction of justice charges. Two months later, the former president’s lawyers filed a motion to dismiss the case, arguing that he should be entitled to absolute immunity so that presidents can make decisions “without hesitation and without fear” of future persecution by political opponents.

As the Trump “immunity” issue heads to the appellate courts, Judge Chutkan has effectively halted the pretrial proceedings in his election interference case.

Now that the case has returned to her court, the parties will have more than two months to prepare their cases before trial begins. But proceedings over whether the acts listed in the indictment are “official” acts will likely eat up the calendar, making a trial before November extremely unlikely.

According to Matthew Seligman, a constitutional scholar and lawyer who argued in favor of Jack Smith’s motion to bar Mar-a-Lago from speaking, it will essentially be a “mini-trial” involving fact-finding and evidence gathering, including potentially Trump’s testimony in court.

“This is a poor, poor substitute for a real trial that deals with the issue of guilt and innocence,” he told reporters Monday, “but it is an opportunity to get a lot of evidence out there so the American people can see some of the crimes of the former president.”

Trump’s attorneys also filed a motion to dismiss his Georgia election interference case, mirroring the federal case against him. The judge overseeing the case at the state level was waiting for the Supreme Court to rule before issuing a ruling.

The case is currently in the hands of a state appeals court, pending consideration of a decision to retain Fulton County District Attorney Fani Willis in the case.

The appeals court is not expected to take up the case until October, and a decision could not come until 2025, when the case would return to a lower court.

Trump also claims immunity from prosecution over the classified documents. Prosecutors say the charges have nothing to do with his actions while in office — they concern Trump’s possession of classified materials after leaving the White House and his alleged attempts to evade law enforcement efforts to recover them.

“This is not about the president’s conduct, so it cannot be ‘official’ and ‘untouchable,’” said John Dean, a former White House counsel under Richard Nixon and a key witness in the Watergate scandal.

“This is post-presidential — the indictment is not about how the documents got there,” he said. “Instead, it’s about withholding documents he had no right to withhold, and resisting and obstructing when asked for the documents.

But “Trump is obviously going to try to somehow portray this as an immune response,” he told reporters Monday.

The former president baselessly claimed that convictions and court decisions in several New York cases should be overturned based on the Supreme Court’s decision, including 34 convictions in his silence trial.

If Trump pursues these charges in court, they likely will be thrown out, said Norm Eisen, a senior fellow at the Brookings Institution and an associate counsel on the House Judiciary Committee during Trump’s first impeachment trial.

The Supreme Court decision replaces Trump’s claim for absolute immunity with “a startling expansion of presidential immunity that goes beyond, far beyond anything we have ever seen or considered in American history, that we have never needed … and that, as the dissenting opinion rightly points out, is dangerous and contrary to the American idea that no one is above the law,” Eisen said.

He added that most of the judges on the court “have to some extent placed American presidents above the law.”