Pete and Mary Mosseau live in Concord.

After leaving office, Donald Trump was indicted by a federal grand jury in August 2023 for his conduct following the November 2020 election. The indictment alleged he conspired to overturn it by spreading knowingly false claims of election fraud to obstruct the collecting, counting, and certifying of election results. He unsuccessfully moved to dismiss the indictment on grounds of presidential immunity.

In December 2023, special counsel Smith’s request for an expedited appeal was denied. The Federal District of Columbia Circuit Court of Appeals also ruled against Trump’s assertion of presidential immunity and Smith’s second request for an expedited appeal failed. In late February 2024, the Supreme Court accepted Trump’s appeal.

On July 2, four months later, the Supreme Court reversed the lower court decisions and ruled, for the first time in our nation’s history, that a president has criminal immunity.

Public approval of the Supreme Court has significantly decreased since 2020, according to the PEW Research Center. The Center’s July 23, 2023, report stated the Court’s favorability rating declined 26% since 2020, and fewer than half of Americans (44%) expressed a favorable view, while a narrow majority (54%) had an unfavorable opinion. Polling about the Court’s politicization has also been conducted. A July 2023 poll by NBC News/IPSOS found while only a third of Republicans and half of independents concluded the Court rules based on partisan political views, three-quarters of Democrats believe politics influence the Court’s rulings.

These troubling polls about the Supreme Court could increase because of the timing and scope of its presidential immunity opinion. As for timing, a historical reference to the Watergate scandal, which involved the June 1972 illegal break-in of the National Democratic Party Headquarters and an attempted cover-up by the Nixon Administration, is instructive.

After individuals associated with President Nixon were indicted, the special prosecutor sought audio tapes from the president who asserted executive privilege. By June 1974, the Supreme Court granted review citing the “public importance of the issues presented and the need for prompt resolution.” Oral arguments were heard and a written opinion overruling the asserted privilege occurred on July 24.

Forward to 2024, and a similar fast track to address the significant constitutional issues here did not occur; with the Court rejecting two requests for expedited review and taking four months from the case’s acceptance to issuing its order. This schedule has rightfully led to questions about whether there was a political motive behind the Court’s pace.

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For instance, earlier this spring on March 1, Sonja West observed: “The highest court in the land sees no reason to hurry. It is hard to imagine a situation with a stronger public need for a sober and complete review of the evidence and a judgment in a court of law before it is time to head to the voting booth. In its decision on Wednesday [when the appeal was accepted], however, the court did all it could to deny the public that right.”

As to scope the 6-3 majority held presidents have “absolute immunity” for actions taken as part of their primary responsibilities such as issuing pardons, supervising and removing Executive Branch members, and recognizing foreign governments. For other official responsibilities, the president has “presumptive immunity” unless prosecution would not intrude upon the Executive Branch’s authority and functions.

Does the text of the United States Constitution support these rulings? No. Although the Constitution’s framers knew how to provide immunity and did so for legislators in the Speech and Debate Clause, they did not do so for the president. Additionally, in the Impeachment Clause the framers provided for criminal liability by establishing an official who is impeached and convicted by the Senate “shall nevertheless be liable and subject to indictment.”

The Federalist Papers are commonly referenced by the Supreme Court to determine the framers’ intent. Do they support these rulings? No. In Federalist No. 69, Alexander Hamilton wrote former presidents would be “liable to prosecution and punishment in the ordinary of law.” Hamilton contrasted the King of England who was “sacred and inviolable” with the president, who was “amenable to personal punishment and disgrace.”

Was the presidential immunity decision foreshadowed by the confirmation hearings of Justices Roberts (2005), Alito (2006), or Kavanaugh (2018)? No. All of them testified no one including the president is “above the law.” In fact, Justice Kavanaugh repeatedly referenced Alexander Hamilton’s comments and that the presidency was not a monarchy.

A portion of the indictment brought against the former president alleged he asked the Justice Department to conduct sham election crime investigations and to send a letter to targeted states that falsely claimed the Justice Department identified significant concerns that may have impacted the election’s outcome. Another section detailed Trump’s communications with Vice President Pence imploring him not to certify the election.

With respect to his communication with the Justice Department, the Court concluded Trump could not be prosecuted because of absolute immunity. Regarding the Pence conversation, Trump was “at least presumptively immune.” The Court ordered the District Court to determine whether the other indictment allegations deserved immunity from prosecution based on their order.

Justice Sotomayor, one of the dissenters, said “under the majority’s reasoning he will now be inoculated from criminal prosecution. Orders the Navy Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to overthrow the government. Immune. Takes a bribe for a pardon. Immune.”

The Watergate scandal led to dozens of criminal convictions, Nixon’s resignation and subsequent pardon and provides insight to the impact of this Court’s ruling. Former White House counsel John Dean, while applying the decision to the Watergate scandal, said it would have given Nixon “a pass” because the evidence against him “was based on official acts the Supreme Court has deemed immune from prosecution.”

Whether this decision impacts the public’s approval of the Supreme Court or an impression it is partisan remains to be seen.