Trump Can Be Prosecuted for January 6th

On Monday, July 1, the Supreme Court ruled that Trump can, in fact, be prosecuted for his part in the conspiracy that led to the January 6, 2021, insurrection in our nation’s Capitol.

The Court stated clearly that a former president can be prosecuted for unofficial acts—those outside the powers and responsibilities of the office.

Among Trump’s lies about January 6 is that his insurrection attempt was an official act, part of administering the certification of the election—even though that’s the responsibility of Congress, not the president. A president has no role in the certification of the election of the next president, for reasons which should be obvious and which Trump demonstrated to all of us on January 6.

That was his argument to the Court: that it was an official act and so he should be immune from prosecution. The Court (stacked as it is with Bush and Trump appointees) held that official acts are immune from prosecution but did not decide on whether his actions in the January 6 conspiracy were official acts. Instead, the Supreme Court left that to be decided when the lower court tries the case.

Jack Smith’s job just got harder

The Special Counsel in charge of prosecuting the case will have to make some changes to accommodate the new ruling.

First, he must allege—and then prove in court—that the acts Trump committed in furtherance of the conspiracy were not official acts of the president, so they’re not covered by this immunity.

He’ll also need to work around some onerous restrictions the Court imposed as part of its ruling: 

  • The Court decided that a president’s “protected conduct” cannot be used as evidence to prosecute unprotected conduct. This means that, say, ordering the Department of Justice to do something—which presumably counts as an official act—can’t be used as evidence to support a charge such as insurrection.

  • The Court also decided that “In dividing official from unofficial conduct, courts may not inquire into the President’s motives.” So showing that Trump’s actions were not official acts may require other means than simply saying he was trying to cling to power despite losing the election, so of course it wasn’t an official act.

We are not lawyers or prosecutors, so we won’t speculate on how Smith will amend the indictment and the prosecution strategy to get around the new restrictions. That will be for Smith and the Department of Justice to figure out.

Regardless of the details, the task before Smith is to prove that Trump’s part in the insurrection was not an official act—and that Trump broke the law in doing it.

The Court’s bogus argument and dangerous conclusion

The Court based its conclusion on the notion that a president being criminally liable for acts committed as president would be an “intrusion on the powers of the Executive Branch” that would unduly limit the actions the president might choose from.

To which we can only say: Limiting a president’s options in order to exclude criminal behavior is the whole point!

Congress should be able to pass laws that clarify certain acts as crimes, and current and past presidents should be subject to prosecution for violating those laws—even, if not especially, when breaking the law in an official act.

This led Justices Jackson and Sotomayor to say in their dissents that the Court’s decision makes the president into a king. Presidents can do whatever they want now; the options for holding a president accountable for actions they claim are official are now severely limited.

Playing the hand we’re dealt

OK, so we disagree with this ruling the Court handed down, but hand it down they did. So where do we go from here?

First, we should recognize that, like all uses of government power, this sword cuts both ways. President Biden is now almost completely immunized from criminal prosecution for anything he does as an official act of the president.

That doesn’t mean he can do anything he wants. The Supreme Court hasn’t granted him any new power to, for example, cancel student debt, only decided that he can’t be prosecuted for doing it.

This also means that if a Republican becomes president after Biden, that administration’s Department of Justice can’t prosecute Joe Biden in federal court for student debt relief, or COVID-19 response, or measures toward gender equality or racial equity, or any other positive things President Biden has done.

They might still try, of course. Trump, especially, is just that kind of vengeful petty tyrant, and the MAGA Republicans are well-established hypocrites who have been sowing lies about “the Biden crime family” for long enough that we can fully expect they will try to prosecute him for something or other. We can also expect that Biden’s attorneys in that case will respond by citing the precedent that the Supreme Court has just made up. And we can hope that this limits the MAGA Republicans’ ability to punish him for his service to the American people.

What we can do in the meantime

The plan in the short term remains unchanged even as it becomes all the more important: Work our butts off to re-elect President Biden and keep convicted felon Donald Trump out of the White House. We’ve got to get out the vote.

Trump must not be allowed to pardon himself and his co-conspirators, cancel his federal prosecution for January 6 and his other federal prosecution for theft of classified documents, enact Project 2025, and otherwise transform our beloved democracy into a fascist monarchy. We all remember how it felt to read the news on November 8, 2016; only hard work for the next several months will avert a repeat of that dreadful day. Nobody can save us but ourselves.

If we win, we then have at least four more years to push President Biden and a Democratic Congress to expand and otherwise reform the Court. Nothing is ever handed to us and victory doesn’t solve everything by itself; we’ll always have to keep doing the work of pressuring our elected officials to do their jobs.

So let’s roll up our sleeves, lace up our boots, get out there and tell our neighbors and our friends and anyone who’ll listen that they have a choice to make this fall, so that we’ll still have a democracy to defend next year.

Resources

Further reading

“With Fear for Our Democracy”, Indivisible National, 07/01/2024

Deep DiveKathy Lassdemocracy, Supreme Court