Sonia Sotomayor wept bitter tears in her long dissent. The very idea of presidential immunity is anti-democratic
So it turned out to be. This morning, “Trump v. United States” dropped. For the first time, the Court pondered the question, “Does a president have immunity from prosecution?” or, to use the language of the opinion, “Whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
The answer was more or less what I predicted. I wrote that, while no one outside the hallowed halls of the Court really knew how the Court would come down on the issue, “most observers expect the Supremes to recognize immunity for ‘official acts’ but to remand to the lower court the vexed question of what counts as an ‘official’ and therefore protected act.”
That is precisely how the Court decided, 6-3 (Justices Sotomayor, Kagan and Jackson dissenting), though in fact the opinion was even more robustly phrased than I could have hoped. “Under our constitutional structure of separated powers,” the Syllabus of the opinion reads, “the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority.
