Uneven immunity ruling from unbalanced court

Opinion editor’s note: Editorials represent the opinions of the Star Tribune Editorial Board, which operates independently from the newsroom.

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The U.S. Supreme Court didn’t give former President Donald Trump what he sought: blanket immunity. But the court wrapped him in a highly favorable ruling that may eventually help him legally and immediately politically.

The ruling, which like nearly everything nowadays in the country and the court, split along ideological lines. The 6-3 decision, with all the court’s conservatives agreeing while the three liberals dissented, in effect said that while presidents have prosecutorial immunity for official White House actions, they do not have immunity for unofficial acts.

Or, in the specific words of Chief Justice John Roberts, who wrote the majority opinion, a president “may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.” Yet a president, continued Roberts, “enjoys no immunity for his unofficial acts, and not everything the president does is official.”

The ruling kicks the can — and the case — back to a lower court, the subsequent judgment of which can be appealed, potentially back to the Supreme Court, for further review. While their eventual adjudication is uncertain, what does seem certain is the ruling’s impact on the charges Trump faces regarding his conduct surrounding Jan. 6, 2021. “It seems highly unlikely that there will be an actual trial before the [Nov. 5] election,” Alan Rozenshtein, an associate professor of law at the University of Minnesota, told an editorial writer.

And if Trump wins that election, he may be able to get the Justice Department to just drop the case altogether, along with the charges he faces regarding classified documents, in which a judge he appointed, Aileen Cannon, is slow-walking the process.

Rozenshtein believes that “there is probably a very small core of powers for which the president is absolutely immune.” Additionally, “I think that there is a pretty substantial scope of presidential authority for which the president doesn’t have absolute immunity, but he gets pretty strong immunity,” and “the government will have to show that he was really intentionally and knowingly operating beyond any plausible understanding of what he was legally entitled to.”

The problem, concluded Rozenshtein, “is how to specify those details.”

Indeed. And among other problems from the decision are issues of balance, according to Thomas C. Berg, a professor of law and public policy at the University of St. Thomas. Berg told an editorial writer that he worries that the decision “sets up barriers to protect the president that go too far in removing the rule-of-law constraints.”

While Berg stressed that every ruling is nuanced, he assessed that “this opinion does not equally balance the dangers of harassment of the office of the president as against holding the individual to the rule of law” and in effect “elevates protection of the president from harassment too far over holding the individual to the rule of law.”

Roberts made sure to write that “the President is not above the law.”

But the dissenters on the court read the decision differently, and defiantly. Justice Sonia Sotomayor wrote that the ruling “reshapes the institution of the presidency” and “makes a mockery of the principle” that “no man is above the law.”

With “fear for our democracy,” she added, “I dissent.”

So do we.