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Supreme Court granted Trump immunity on election subversion charges

ARI SHAPIRO, HOST:

The Supreme Court issued a historic, consequential and controversial decision today granting substantial immunity from prosecution to former President Trump on election subversion charges. The decision will almost certainly delay his trial until after the November election, if that trial takes place at all. The vote was 6 to 3, with the court's Republican appointees all in the majority and the Democratic appointees in fierce dissent. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: The decision, written by Chief Justice John Roberts, established a broad new immunity from prosecution not just for Trump, but for future presidents too. Presidents may not be prosecuted for exercising their, quote, "core constitutional powers." And even in situations where former presidents might be prosecuted after leaving office, they are entitled to at least the presumption of immunity from prosecution for actions they took as president. Such immunity is needed, said the chief justice, in order to protect an energetic and independent executive willing to take bold actions and make unpopular decisions when needed.

The court, however, did not itself resolve whether any of the election subversion charges could go forward. Rather, it sent the case back to the trial court judge to determine whether any of the charges against Trump are sufficiently private to survive - in other words, not within his official purview as president. And it made it far more difficult to prosecute a former president by limiting the evidence a prosecutor could present. Stuart Gerson, a former Republican Justice Department official, put the effect of today's ruling this way.

STUART GERSON: It is impossible that this case will be resolved, if ever, before the election.

TOTENBERG: In short, he said Trump got what he wanted - delay. But the former president actually got quite a bit more. The court made clear that if he's reelected, he'll be free to simply order the Justice Department to drop the charges against him and that his pardon power is unlimited.

Make no mistake, said Justice Sonia Sotomayor in a passionate dissent from the bench. The majority gives President Trump all he asks for and more, whether described as presumptive or absolute. Under the majority's rule, a president's use of any official power for any purpose, even the most corrupt, is immune from prosecution. Even the most private and nonofficial act like bribery, she said, is insulated because the president is commander in chief. And under the court's rules laid down today, even if bribery charges are brought against a former president, prosecutors could not present evidence of a quid pro quo. The money may have been the quid, but the quo was an official act which, presumptively, is insulated from prosecution.

Justice Amy Coney Barrett broke with her fellow conservatives on this important point, siding with the dissenters. The Constitution, she said, does not require blinding juries to the circumstances of a president's official and allegedly illegal actions. NYU law professor Melissa Murray was surprised by the breadth of the court's ruling.

MELISSA MURRAY: I just don't think anyone imagined they would draw the line in a way that so clearly put a thumb on the scale for a president and for this particular former president.

TOTENBERG: For instance, as she observed, the court seemed to say that anytime the president talked to the vice president, that conversation was presumptively immune from being disclosed to a jury regardless of how incriminating it may have been.

MURRAY: If I were the Biden administration, I would be running on this court's enormous capacity to stoke chaos.

TOTENBERG: Georgetown University Law professor Stephen Vladeck seemed to second that view.

STEPHEN VLADECK: The next president probably gets to pick at least two, if not three justices. You know, do we want that to be Donald Trump, or do we want it to be Joe Biden? I think the court did nothing today to make itself less of an issue in the election.

AKHIL AMAR: The originalists in the room were actually the liberals.

TOTENBERG: Yale law professor Akhil Amar, one of the country's leading constitutional scholars, was flabbergasted by the decision, which he maintained is contrary to both the history and text of the Constitution. He said that the court, by barring any consideration of motives in a criminal case against a former president, violated both common sense and the words of the Constitution.

AMAR: I don't love the criminalization of politics and going after ex-officials. But I think here they really created a Frankenstein. There were ways of avoiding that without going nearly so far as they seemed to do.

TOTENBERG: Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

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.
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