Trump’s immunity ruling, explained by a law professor

[MUSIC PLAYING] CATHY WURZER: And of course, the story that people are talking about, this morning's Supreme Court decision that ruled that former President Trump is partially immune from prosecution over the events of January 6 of 2021. The court decision was 6 to 3, divided along partisan lines. And the decision sends the case back to lower courts.

That move will likely delay a trial for Trump on plotting to overturn the results of the 2020 election. Here to explain is University of Minnesota Law Professor Jill Hasday. Professor, welcome back.

JILL HASDAY: Thanks for having me.

CATHY WURZER: Can you explain how the ruling makes former President Trump partially immune from being prosecuted over January 6?

JILL HASDAY: Yeah, this is a huge victory for Trump. So what the court said is that presidents have absolute immunity when they exercise what the court calls core constitutional powers, meaning anything that falls in the president's exclusive constitutional authority.

So, for instance, the court completely dismisses the charges alleging that Trump basically tried to use the Justice Department to pressure states to overturn the 2020 election results. They say a president has complete control over the Justice Department that's in his executive branch. That's gone. So there's absolute immunity when the president's in his core responsibilities, meaning responsibilities only the president has.

Then the court says the president has a presumption of immunity, as long as he's within what the court calls the outer perimeter of his official responsibilities, so, for instance, something he shares with Congress. And the court says here, it's difficult to determine what's official and unofficial, so signaling sort of they're wary of calling something unofficial.

They do say if it's unofficial, there's no immunity. But the court says it's hard to know what's official or unofficial. Motive doesn't matter in deciding what's official or unofficial. In other words, you don't ask why is the president talking to someone, just the fact that he's talking to that person.

And in going after unofficial conduct, you can't use any evidence of immune conduct. In other words, not only can you not prosecute Trump for his interactions with the Justice Department, you can't use evidence about what Trump did with the Justice Department to go after in any other case. That's just gone.

CATHY WURZER: I'm wondering about, then, the tweets, because, of course, that's public communication. But I wonder if they're likely to fall within the outer perimeter of his official responsibilities. I mean, these words he was tweeting out, did he deliver them as president or as a candidate for office, I wonder?

JILL HASDAY: So the court remand-- that's one of the things the court remands exactly on that, his speech to the crowd on January 6. And then his tweets, was that official or unofficial? So I think it's a huge win for Trump on a few ways.

First, if Trump is elected president, the case ends because this is a federal prosecution. He'll tell the prosecutors no longer to prosecute. But even if he's not elected president, the court is signaling that-- I don't want to say 100%, but to me, the way I read it is, they're wary of calling things like the tweets unofficial.

For instance, they say in the opinion, a core part of the president's job is communicating with the public. In other words, they're linking the tweets to any sort of political conversation a president would have, rather than specifically, allegedly, trying to incite a riot against the Capitol. But so if we actually go to-- if it ends up Trump isn't elected and there is a remand, I think it's going to be hard to establish that those were unofficial.

CATHY WURZER: Those on the high court who dissented-- I'm thinking of Justice Sotomayor-- that dissent was blistering. Can you talk about that?

JILL HASDAY: Right. I mean, I think there's two lines that stand out for me. So typically, when a Supreme Court justice dissents, they'll often say, I respectfully dissent, or something like that. Sotomayor, when she dissents, says "With fear for our democracy, I dissent." And elsewhere in her dissent, she says, "The president is now a king above the law."

So one of the tensions in American constitutional law for a long time is how to balance the increasing authority of the president, in part because of the Supreme Court's enablement, but also in part because Congress often lets the president take the lead. How to balance that with core rule of law values that everyone is accountable? One thing the founders were very clear on is they did not want a king.

And I think this is fair that this is a significant step increasing the president's authority even beyond what he had last week. It's easy to think of nightmare scenarios, and Sotomayor does. So, for instance, one of her scenarios is suppose the president orders the military to assassinate a political rival.

Well, isn't directing military operations within the president's exclusive authority? So wouldn't he have absolute immunity, especially because the court tells us elsewhere that motive doesn't matter in evaluating immunity claims? So it seems like this opinion establishes absolute immunity for political assassinations.

CATHY WURZER: You are a law professor. I'm wondering what you make of this question, because, of course, this has been all over social media. Did the high court then, fundamentally, alter the structure and nature of our democracy?

JILL HASDAY: I will say that when the Supreme Court took the case, I think a very strong consensus of law professors thought Trump was going to lose. They thought the Supreme Court's decision to take the case was still a victory for Trump because it delays everything. It delays his friend. He doesn't want anything to happen until, he hopes, he becomes president in November.

But I really think most law professors thought he was going to lose. And then as time passed and the Supreme Court seemed to be working on a big opinion, people got more and more worried. I really don't think that most people expected this because it is so-- it really, is so sweeping, both in the absolute immunity for core constitutional powers, but also in the way that it signals that it's going to be very difficult to prosecute the president in any event.

So for instance, as I said, core constitutional responsibilities, absolute immunity. There's a presumption of immunity if it's an official act, but it's not an exclusive presidential responsibility. That means the burden is on the government to show that the prosecution would pose no danger of intrusion into executive function. Not it's worth the intrusion, but no danger at all, it's just going to be a very hard standard to meet.

CATHY WURZER: Because the Supreme Court ordered lower courts to figure some of this out, what of that? Because why didn't they just decide to kind of kick this can down the road, in a sense.

JILL HASDAY: Right. I mean, in general, the Supreme Court remands when there's factual issues to develop. The court isn't a trial court. So the idea is now there has to-- and there hasn't been an inquiry on these tests because, of course, no one knew these tests were going to be the tests. Right?

CATHY WURZER: True, yeah.

JILL HASDAY: So now there has to be an inquiry. Is there a danger of intrusion? And people make arguments on both sides. Or on the official or unofficial conduct, obviously, lawyers on both sides can argue about those tweets. Was that the president, in his kind of role as advisor to the nation, or was that just pure kind of politics or even personal ranting?

But at this point, I think there's zero chance of anything going forward before the election because it's going to be very complicated and, frankly difficult for government prosecutors.

JILL HASDAY: What else will you be looking for here in the coming months of the election related to this decision? Anything?

JILL HASDAY: Well, as I think maybe I've discussed on NPR before, public confidence in the Supreme Court is at an all-time low, in part because of people's concerns that the court is too ideologically driven. And one thing I-- and in some ways, this doesn't have quite the immediacy of, say, the Dobbs decision overruling Roe v. Wade. But it will be interesting to me whether this decision further erodes public confidence in the Supreme Court.

CATHY WURZER: All right. Professor, I appreciate your time. Thank you so much.

JILL HASDAY: Thanks for having me.

CATHY WURZER: We've been talking to University of Minnesota Law Professor Jill Hasday.