On this special bonus episode of Civics 101, we talk about the Supreme Court’s decision on July 1st in the case of Trump v United States. The court ruled along ideological lines; it was a 6-3 decision that granted former president Donald Trump - and any president - some degree of immunity. But it's a long opinion, and a complicated one.
To explain all of it, we reached out to Dr. Claire Wofford, an Associate Professor of Political Science at College of Charleston.
Nick Capodice: [00:00:03] You're listening to Civics 101. I'm Nick Capodice. And we are doing a super quick turnaround bonus episode on the Supreme Court's decision today, July 1st, in the case of Trump v United States, the court ruled along, as we so often say, ideological lines, it was a 6 to 3 decision that granted former President Donald Trump and any president some degree of immunity. And we'll get to that level of immunity a little bit later. [00:00:30] The opinion is long. It was written by Chief Justice John Roberts, with concurring opinions by Justice Clarence Thomas and Justice Amy Coney Barrett, and dissenting opinions by Justice Sonia Sotomayor and Justice Ketanji Brown Jackson. I'm really quickly just going to read the most relevant paragraph from Chief Justice Roberts opinion here. Quote, under our constitutional structure of separated powers, the nature of presidential power entitles a former president to absolute [00:01:00] immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority, and he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts. To explain all of this today, I am speaking with Doctor Claire Wofford. She's an associate professor of political science at the College of Charleston. Doctor Wofford, thank you so [00:01:30] much for being on Civics 101. Welcome.
Claire Wofford: [00:01:32] Thank you. Happy to be here.
Nick Capodice: [00:01:34] It's great because we don't usually do it this way. We usually record things in advance. So we're on a strange, fast journey together, you and I.
Claire Wofford: [00:01:42] Well, I look forward to making as much sense of it as we can.
Nick Capodice: [00:01:46] So first off, can you give us, like, a quick, fast recap of how we got here? Like what is the case or the cases about which the court was weighing presidential immunity?
Claire Wofford: [00:01:57] Right. So President Trump has had multiple cases [00:02:00] proceeding in various courts. This case centered around the prosecution of Donald Trump by Special Counsel Jack Smith for actions that he took related to the 2020 election, and he was alleged to have committed four violations of federal law in his attempt to, in some be some people's view, overturn the 2020 election. And Trump had argued that he could not be prosecuted for any of those alleged crimes because, [00:02:30] as a former president, he was immune from prosecution, which basically means he was sort of outside the legal system when it comes to those alleged acts. And the government had countered, of course, that a president is not above the law and that he was subject to prosecution. And so what the Supreme Court was deciding today was whether or not the prosecution of Donald Trump for what he did in and around the 2020 election and January 6th could go forward. [00:03:00]
Nick Capodice: [00:03:00] And more about that word immunity, like in a legal term. What does it mean? Like, is somebody just protected from their consequences in the judicial system, or are they like outside the law? Are they above the law?
Claire Wofford: [00:03:11] I think Justice Jackson actually had a good word for it in her dissent. In today's opinion. She talked about it as an exemption. So you're not completely outside the legal system writ large. You're not above the law in all manner and in all days and times. But you are in, in a in a certain instance, [00:03:30] you are exempt from that criminal statute. So everyone else would be subject to prosecution under that particular, uh, criminal law. You therefore are not.
Nick Capodice: [00:03:41] So on to the actual decision. Onto the opinion. What does it say? Like does it say that presidents have total immunity or not?
Claire Wofford: [00:03:53] Here's a classic lawyer answer. Sort of. And it depends. So it's it basically [00:04:00] breaks down immunity into three, two to three different levels. And what the court first says, which they actually didn't have to say, but they were, as we've talked about, writing a rule for the ages, so I'm sure they felt compelled to answer this question. But they first say that when it comes to what they call core presidential actions, these are things that the Constitution explicitly gives to the president and nobody else. Right? Those are called core executive [00:04:30] functions. A president in that case does enjoy absolute immunity. And in the opinion they mentioned specifically, which I think is interesting, the pardon power and the removal power. So if the president's exercising the pardon power or exercising his appointment or removal power in a way that potentially would violate criminal law, as of today, those can no longer violate criminal law, and he will be exemption for any prosecution for what falls [00:05:00] within his core executive duties. That, of course, leaves the question about, well, what about things that aren't considered part of his core duties? He has a lot of powers that aren't explicitly listed in the Constitution, and he shares a lot of powers with Congress. And that's where the court got into the nuances. And it's in those non-core powers that the court said today. The president has, and they literally use this word some immunity in very great, [00:05:30] precise legal language. President Trump has some immunity over these non-core powers. And when you're in that realm, the extent of that immunity to make it even more complicated depends on whether or not what he did in an exercise of his non-core power was official or unofficial. You sticking with me?
Nick Capodice: [00:05:53] I'm with you. So who determines whether something is official or unofficial?
Claire Wofford: [00:05:58] That's an excellent question. [00:06:00] The main takeaway from this case is that it's going to be remanded back to Judge Chutkan, at the district court level, and she will make a determination whether or not what he did was official or unofficial. And what the court declared today is that if what he is alleged to have done is an official act, he has, at a minimum, presumptive immunity, meaning he's probably immune. But the government can rebut [00:06:30] that presumption by making a certain, uh, legal showing. I'm trying to not get in the weeds, but that's going to be the key distinction whether or not what he did was considered official or non official.
Nick Capodice: [00:06:42] I don't know if you've even had time to read the whole thing. It's massive 110 pages.
Claire Wofford: [00:06:47] Yeah, I've made it through most of it. Maybe not every footnote, but most of it.
Nick Capodice: [00:06:52] So what was the legal reasoning of the court like? What was their justification and granting this immunity?
Claire Wofford: [00:06:59] So [00:07:00] the court was is very concerned. The court majority is very concerned with the ability of the executive to act in their words, vigorously. And they seem really worried that were they not to give the president at least a significant amount of immunity, that the president would not be able to take the actions he or she needs to take because he or she would constantly be worried about the threat of prosecution. And so they go through [00:07:30] a lot of discussion about the way the framers set up the government and the the framers hope that the president would be not a total, uh, dictator, but certainly a very powerful actor. And so they spent a lot of time working through how the needs of the presidency outweighed, um, any potential, um, risks that he would consider himself above the law and pursue criminal activity, which, of course, is what the dissent [00:08:00] says they set up here. So I was a little bit surprised that there was not much more of a discussion of legal precedent. This didn't really seem to turn on legal precedent. It seemed to turn on broader concerns that the majority had. And I'm especially the opinion was written by Justice Justice Roberts. But I'm hearing echoes of Kavanaugh, um, from the oral argument, because if the oral argument, Justice Kavanaugh was really hammering home this idea that presidents are going to be too afraid to take any action because they're going to be subject to prosecution. [00:08:30] And that was a real linchpin of today's opinion. They want the president to feel free to take the actions he or she thinks is necessary, and not worry about being prosecuted by a political enemy.
Nick Capodice: [00:08:43] Can you speak to sort of like the narrowness versus the broadness of this opinion, like we've talked on our show in the past about, you know, opinions like Bush v Gore, which were decided so strangely and quickly that they were like, never look at this again. Nobody ever look at [00:09:00] this again. Um, reading this opinion, does this feel like something that will last through the ages, or is this another like super narrow Donald Trump 2024 opinion?
Claire Wofford: [00:09:11] No, this is a sweeping opinion. This is an opinion that law students are going to read for the next 20, 30, 40, 50 years. The court did what it said it was going to do. It set out to make a fundamental statement about the balance of power between the president and the legal system, and they use really [00:09:30] sweeping language here. They are clearly not. And in fact, there's a paragraph in the opinion where they say, look, we really can't be concerned with what happened in this particular case. We have to think more broadly about our constitutional structure, the proper functioning of the executive, the stability of the American republic. And so they see themselves as really writing probably one of the most important decisions about executive power and separation of powers that we certainly [00:10:00] seen in a long, long time. This one's going to last, for better or worse. For better or worse.
Nick Capodice: [00:10:30] I [00:10:30] do want to talk a little more about the dissent. There was a line I read this morning. Justice Sotomayor wrote, quote, it makes a mockery of the principle foundational to our Constitution and system of government, that no man is above the law. So what was the reasoning of the justices who wrote the dissent?
Claire Wofford: [00:10:49] So the dissent is a how can I put this extremely passionate repudiation of the majority's reasoning? [00:11:00] And there's a dissent by Justice Sotomayor. And then there's another dissent by Justice Jackson. They joined each other. And basically what Sotomayor says is she says it much more, um, intelligently than this. But her basic sense is, are you kidding me? Court majority what you have now done. And this is another line she has that I love. She says you've created a law free zone around the president. And she argues that in its in its [00:11:30] concern about the president being able to operate effectively without fear of prosecution, what they've done is placed the president and the president alone, in a unique position, such that as long as he is able to argue that what he has done is an official act, he is immune from criminal prosecution, and that is what leads her to conclude he is above the law. In her separate dissent, Justice Jackson, [00:12:00] of course, agrees with all that and makes the argument that the um, in a more theoretical way, what the court has done has changed the nature of legal accountability. And rather than having the president as every other citizen, is subject to what she calls individual accountability, that the court has now invented this what she calls presidential accountability model, in which prosecutors will have to one run through what she calls a gantlet before [00:12:30] they're able to prosecute the president. So, in both Justice's view, what the court majority has done is pluck out the presidency and give him a level of legal protection that no other individual in the American government or the American population enjoys.
Nick Capodice: [00:12:48] There was one part of the opinion that stuck out to me, and it had to do with evidence. Yes. Justice Roberts said that if it was something was deemed an official act, he wrote testimony [00:13:00] or private records of the president or his advisers probing such conduct may not be admitted as evidence at trial. So what does that mean for the case going forward?
Claire Wofford: [00:13:10] So big picture the case going forward. It is possible that Trump will still be prosecuted when is a separate question, but it is now a very narrow path forward on that prosecution. It's going to take me a while to circle back to answer your question, because the district court, as I said before, is now going to need to make this determination [00:13:30] whether or not the actions that Trump took were official or unofficial. Now, both sides agreed at oral argument that Trump can be prosecuted for private acts, right, for things he did that were private. And Trump's attorney at oral argument admitted that when Trump reached out to whomever who everyone thinks is Rudy Giuliani and called him up and came up with this idea about fake electors, that that was private, that was private acts and subject to prosecution. So the trial can go forward on that. [00:14:00] What the court did, in the opinion today is imply, however, that if some of the evidence you need to prove the the motive or intent behind the private activities, touches on official acts or official duties can't be included as evidence proving the nature of that private act. So the court not only narrowed what acts the president can be prosecuted for. It narrowed what evidence [00:14:30] can be used at trial to prove that private i.e. potentially criminal, activity. The court says in this opinion that it's only giving him some immunity and that it's limited immunity. But then when you really get into the nuances of how this immunity is going to operate, there's language in the opinion that really is not 100% in Trump's favor. But it's it's it's in the 90s to [00:15:00] be sure.
Nick Capodice: [00:15:01] So very broadly you said this is going to be read by people in law school for centuries to come. What does this mean for the future? Like not just Trump and not just Biden, but all the presidents yet to be? How has their power and how has the job changed in light of this opinion?
Claire Wofford: [00:15:21] So it's a really interesting question and -- and we actually don't know potentially the president now has [00:15:30] a much broader sphere in which he or she can act than they did before, because, of course, under the court's ruling, so much of what a president might do is now at least arguably subject to immunity. The real impact of the decision on the ground, I think, is going to depend on who the president is. If this case is, as the government's argued [00:16:00] at trial, they called it, a once in history prosecution. If we never see another president take the kind of actions that Donald Trump took, then even though this case will be read by law students, it's not going to operate as a real constraint on a president, because you won't have a president continually trying to break the law. If, however, as the as the dissent fears, and as many people fear for those who are afraid that President Trump is not the last of this kind, and we are [00:16:30] going to have a pattern of presidents trying to seize more and more authority and transform our country from a democratic Republican to some kind of authoritarian regime. Then those future Trumps, as it were, are going to have a lot more leeway than they did yesterday to behave in potentially unlawful ways. And at that point, it would be up to the court again, were, for example, a president to order the assassination of his political rival. It would be [00:17:00] up to the Supreme Court again to make the decision whether or not they wanted to walk back the very broad protection they've given the president today.
Nick Capodice: [00:17:11] I saw a tweet today by House Representative Alexandria Ocasio-Cortez, and she wrote today's ruling represents an assault on American democracy. It is up to Congress to defend our nation from this authoritarian capture. I intend on filing articles of impeachment upon our return. [00:17:30] How would that work? Or would that even.
Claire Wofford: [00:17:34] I mean, the justices are subject to impeachment. Uh, that's under the Constitution. They are subject to impeachment. Her passion and intensity aside, I don't see much of a future for that.
Nick Capodice: [00:17:45] So you teach political science, and your students are very lucky, by the way, if I may say so.
Claire Wofford: [00:17:51] I don't know if they would agree with that, but thank you.
Nick Capodice: [00:17:54] What do you foresee the conversation going to be like in your classroom come September about this? [00:18:00]
Claire Wofford: [00:18:00] You know, honestly, Nick, so much is going to depend on the election. Um, and who gets elected because of course, that's another great unknown. Right? I've been thinking about, well, what will happen now and could there be a potential trial, etc., etc. you know, it looks fairly likely that Donald Trump is going to be reelected president, in which case I think we see a dismissal of these charges. Um, there's the potentiality for them being brought after he's out of office. My hope is that this will not cause [00:18:30] them to shut down and give up on American politics. I do think that what the court did today is not going to help the public's view of it as a legitimate, legally grounded institution. And that's part of why I'm disappointed in what the court did today. I thought they could have drawn a more legally sound, legally nuanced line in this instance, and the way not only the content of the opinion, but, [00:19:00] of course, the lineup of the justices I don't think is going to help their standing in the public. And so I don't want my students to become even more discouraged than they are about the nature of American politics, because at the very least, we have to have them be involved. And so my hope is that whatever passion they feel about what's happened here with Donald Trump and what's happened here with the Supreme Court, that that doesn't cause them to turn away from politics, but causes them [00:19:30] to turn toward politics. Because if our country needs to get on a better course, it's going to be that generation that does it.
Nick Capodice: [00:19:43] Doctor Wofford, an absolute pleasure.
Claire Wofford: [00:19:46] Oh, good.
Nick Capodice: [00:19:47] Thank you so much for talking with us. So [00:20:00] if you found this episode helpful in your understanding of this landmark for the ages Supreme Court decision, please let us know. We here at Civics 101 are here to help you better understand what's happening at the court, and we'd always be happy to produce more of these bonus episodes if you like them. This episode is produced by me Nick Capodice and edited by our executive producer [00:20:30] Rebecca LaVoie. Music is from Epidemic Sound. Our team also includes my co-host Hannah McCarthy, senior producer Christina Phillips, and our summer intern, Catherine Hurley. Civics 101 is a production of NHPR, New Hampshire Public Radio.