Politics
Column: After the Supreme Court's immunity ruling, can Donald Trump still be tried for Jan. 6?
The Supreme Court ended a tumultuous term with one final sledgehammer blow on Monday. Its decision on Donald Trump’s claim of immunity from criminal charges forecloses any possibility that he will be tried for Jan. 6 before the election, substantially guts the prosecution and reshapes the Constitution to place the president singularly beyond the reach of criminal law.
The opinion was even more expansive in its grant of presidential immunity than commentators anticipated after the oral argument suggested the conservative majority was headed that way. And while it theoretically permits prosecution of some of the long list of Trump’s pernicious and treacherous acts in the weeks after the 2020 election, it erects a series of legal roadblocks and presumptions that make it anyone’s guess whether Trump will ever face accountability under the indictment.
The court’s essential holding is that constitutional principles of separation of powers forbid the criminal prosecution of a former president for “official acts” that took place during his term, while allowing it for “unofficial” acts. The 6-3 decision broke down along familiar lines, with the conservative majority continuing its project of remaking the law and the structure of the federal government.
How to draw the line between official and unofficial conduct? The court provides several criteria that, albeit somewhat opaque, clearly protect swaths of conduct that would strike nearly everyone as corrupt and lawless — not least much of what Trump undertook after the 2020 election.
For starters, the court prescribes absolute immunity for any exercise of “core constitutional powers.” These include at a minimum the enumerated presidential powers of Article 2 of the Constitution, such as acting as commander in chief of the armed forces, issuing pardons and appointing judges. A president acting within these areas is untouchable.
Importantly, the court holds that this immunity precludes any consideration of motive. So a president who, for example, issues a pardon in return for a bribe or fires an executive branch official out of racial animus is just as protected from the law as one who takes such actions for appropriate and conventional reasons.
This could authorize some of the most vicious and problematic presidential conduct. There is no apparent reason, for example, that it doesn’t encompass what had been taken as a devastating hypothetical offered by Judge Florence Y. Pan of the U.S. Court of Appeals for the D.C. circuit: a president’s use of Navy SEALs to assassinate a political rival. If the reason for a president’s use of commander-in-chief powers is outside the bounds of inquiry, such conduct is indistinguishable from a conventional military mission.
Motive is the soul of the criminal law. It’s what divides conduct society accepts from conduct for which we put people in prison. The declaration that it has no role to play in determining a president’s criminal liability is nearly tantamount to making him a king.
Yet the court’s decision goes considerably further. It immunizes not just core constitutional functions but also any conduct within the outer perimeter of executive authority — the same capacious standard that already applies to civil lawsuits over presidential conduct.
And though there is some debate on this point, the court appears to go even further by imposing a presumption of immunity for conduct outside that perimeter unless the government shows that a prosecution would “pose no dangers of intrusion on the authority and functions of the Executive Branch.”
How this will play out in the Jan. 6 prosecution is to some extent for U.S. District Judge Tanya Chutkan to try to figure out, with Trump challenging every move she makes along the way. The court emphasizes that distinguishing “the President’s official actions from his unofficial ones can be difficult” and may necessitate a “fact-specific” inquiry into their context (not including the president’s motive).
But the court drops some very strong hints about which aspects of the prosecution are precluded. It essentially says that Trump’s alleged efforts to level false accusations of election fraud in Georgia with the aid of a Justice Department functionary are off-limits. That’s because the charge implicates the president’s official power to investigate and prosecute crimes.
The opinion also strongly suggests that the alleged plot to strong-arm Vice President Mike Pence into violating the Constitution may be protected because it pertains to the interactions of the executive branch’s top two officials.
And the court seems to want to give a pass to Trump’s incendiary rhetoric near the Capitol on Jan. 6 on the basis that communication with the public is part of what the president does.
The only aspect of the indictment that the court seems disposed to preserve is the alleged extensive effort to set up fraudulent slates of electors. Even there, however, the court prescribes a detailed inquiry that puts the burden on special counsel Jack Smith’s team to counter Trump’s argument that his conduct was official “because it was undertaken to ensure the integrity and proper administration of the federal election.”
Even if Trump loses the election and the case is allowed to proceed beyond this year, it will require more time-consuming legal combat. Every aspect of the application of the court’s opinion to the case could be appealed to the D.C. circuit and the Supreme Court.
And where does it all come from, this fundamental reordering of our tripartite system of government and the principle — to which the court continues to give lip service — that the president is not above the law?
The answer is no more than the court’s view that the president must be able to take bold and energetic action without worrying about subsequent criminal prosecution. The justices are not, strictly speaking, interpreting any provision of the Constitution but rather applying their notion of what makes for an effective president. The conservative majority is essentially grafting its political science principles onto constitutional structure and using them to drive a truck through the principle of equality before the law.
The majority dismisses the liberal dissenters’ insistence that the decision puts the president above the law as amounting to “ignoring the Constitution’s separation of powers and the Court’s precedent and instead fear mongering on the basis of extreme hypotheticals about a future where the president ‘feels empowered to violate a federal criminal law.’ ”
But there is nothing fearmongering, unrealistic or extreme about those worries. They concern a reality that is right before the justices’ eyes. They have chosen to ignore it, ensuring that justice for the most serious assault on the Constitution in our history will be much delayed and largely denied.
Harry Litman is the host of the “Talking Feds” podcast and the “Talking San Diego” speaker series. @harrylitman
Politics
Sen Murphy warns ‘people are going to die’ as Congress punts on expiring Obamacare subsidies
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A bipartisan Obamacare fix remains out of reach in the Senate, for now, and lawmakers can’t agree on who is at fault.
While many agree that the forthcoming healthcare cliff will cause financial pain, the partisan divide quickly devolved into pointing the finger across the aisle at who owns the looming healthcare premium spikes that Americans who use the healthcare exchange will face.
Part of the finger-pointing has yielded another surprising agreement: Lawmakers don’t see the fast-approaching expiration of the Biden-era enhanced Obamacare subsidies as Congress failing to act in time.
“Obviously, it’s not a failure of Congress to act,” Sen. Chris Murphy, D-Conn., told Fox News Digital. “It’s a failure of Republicans to act. Democrats are united and wanting to expand subsidies. Republicans want premium increases to go up.”
Partisan rancor over Obamacare has seeped into how lawmakers view the effect that expiring subsidies will have on their constituents. Sen. Chris Murphy, D-Conn., argued that it was a “life or death” situation, while Republicans contended that Democrats set up the very cliff they maligned. (Tom Williams/CQ-Roll Call, Inc. via Getty Images)
DEMOCRATS’ LAST-MINUTE MOVE TO BLOCK GOP FUNDING PLAN SENDS LAWMAKERS HOME EARLY
Senate Republicans and Democrats both tried, and failed, to advance their own partisan plans to replace or extend the subsidies earlier this month. And since then, no action has been taken to deal with the fast-approaching issue, guaranteeing that the subsidies will lapse at the end of the year.
A report published last month by Kaiser Family Foundation, a nonprofit healthcare think tank, found that Americans who use the credits will see an average increase of 114% in their premium costs.
The increase can vary depending on how high above the poverty level a person is. The original premium subsidies set a cap at 400% above the poverty level, while the enhanced subsidies, which were passed during the COVID-19 pandemic, torched the cap.
For example, a person 60 years or older making 401% of the poverty level, or about $62,000 per year, would on average see their premium prices double. That number can skyrocket depending on the state. Wyoming clocks in at the highest spike at 421%.
SENATE MULLS NEXT STEPS AFTER DUELING OBAMACARE FIXES GO UP IN FLAMES
Sen. Rick Scott, R-Fla., doesn’t want to blow up Obamacare or get rid of Obamacare subsidies, but he does want to provide Americans with more options for healthcare. (Andrew Harnik/Getty Images)
In Murphy’s home state of Connecticut, premiums under the same parameters would hike in price by 316%.
“When these do lapse, people are going to die,” Murphy said. “I mean, I was talking to a couple a few months ago who have two parents, both with chronic, potentially life-threatening illnesses, and they will only be able to afford insurance for one of them. So they’re talking about which parent is going to survive to raise their three kids. The stakes are life and death.”
Both sides hold opposing views on the solution. Senate Republicans argue that the credits effectively subsidize insurance companies, not patients, by funneling money directly to them, and that the program is rife with fraud.
Senate Democrats want to extend the subsidies as they are, and are willing to negotiate fixes down the line. But for the GOP, they want to see some immediate reforms, like income caps, anti-fraud measures and more stringent anti-abortion language tied to the subsidies.
Sen. Rick Scott, R-Fla., who produced his own healthcare plan that would convert subsidies into health savings accounts (HSAs), argued that congressional Democrats “set this up to expire.”
SENATE REPUBLICANS LAND ON OBAMACARE FIX, TEE UP DUELING VOTE WITH DEMS
Senate Majority Leader John Thune, R-S.D., panned Senate Democrats’ Obamacare subsidy proposal as “obviously designed to fail.” (Tom Williams/CQ-Roll Call, Inc. via Getty Images)
But he doesn’t share the view that the subsidies’ expected expiration is a life-or-death situation.
“I’m not taxing somebody who makes 20 bucks an hour to pay for healthcare for somebody who makes half a million dollars a year, that’s what they did,” he told Fox News Digital. “All they did was mask the increase in healthcare costs. That’s all they did with it.”
Sen. Jim Banks, R-Ind., similarly scoffed at the notion, and told Fox News Digital, “The Democrat plan to extend COVID-era Obamacare subsidies might help less than half a percent of the American population.”
“The Republican plan brings down healthcare costs for 100% of Americans,” he said. “More competition, expands health savings accounts. That needs to be the focus.”
Democrats are also not hiding their disdain for the partisan divide between their approaches to healthcare.
Sen. Brian Schatz, D-Hawaii, told Fox News Digital that the idea that this “is a congressional failure and not a Republican policy is preposterous.”
“They’ve hated the Affordable Care Act since its inception and tried to repeal it at every possible opportunity,” he said, referring to Obamacare. “The president hates ACA, speaker hates ACA, majority leader hates ACA, rank-and-file hate ACA. And so this is not some failure of bipartisanship.”
While the partisan rancor runs deep on the matter of Obamacare, there are Republicans and Democrats working together to build a new plan. Still, it wouldn’t deal with the rapidly approaching Dec. 31 deadline to extend the subsidies.
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Senate Majority Leader John Thune, R-S.D., predicted that the Senate would have a long road to travel before a bipartisan plan came together in the new year, but he didn’t rule it out.
“It’s the Christmas season. It would take a Christmas miracle to execute on actually getting something done there,” he said. “But, you know, I think there’s a potential path, but it’ll be heavy lift.”
Bill Clinton, Bill Gates, Noam Chomsky and Woody Allen were among the familiar faces in the latest batch of photographs released by Democrats on the House Oversight Committee in connection to the late Jeffrey Epstein. With the Justice Department preparing to make additional files public, the images underscore an uncomfortable truth for us all: The convicted sex offender moved comfortably among some of the most intelligent men in the world. Rhodes scholars, technology leaders and artists.
Also in the release was a photograph of a woman’s lower leg and foot on what appears to be a bed, with a paperback copy of Vladimir Nabokov’s “Lolita” visible in the background. The 1955 novel centers on a middle-aged man’s sexual obsession with a 12-year-old girl. Epstein, a serial sexual abuser, famously nicknamed one of his private planes “The Lolita Express.” And we are to believe that some of the globe’s brightest minds could not put the dots together?
Donald Trump, who once described himself as “a very stable genius,” included.
“I’ve known Jeff for 15 years. Terrific guy,” Trump told New York magazine in 2002. “He’s a lot of fun to be with. It is even said that he likes beautiful women as much as I do, and many of them are on the younger side.”
Later, the two had a public falling out, and Trump has repeatedly denied any wrongdoing. Great. But denial after the fact is only one side of this story. The other is harder to digest: Either the self-proclaimed “very stable genius” spent nearly two decades around Epstein without recognizing what was happening in plain sight — or he recognized it and chose silence. Neither explanation reflects on intelligence as much as it does on character. No wonder Trump’s defenders keep raising the most overused word in American politics today: hoax.
“Once again, House Democrats are selectively releasing cherry-picked photos with random redactions to try and create a false narrative,” said White House spokesperson Abigail Jackson. “Here’s the reality: Democrats like Stacey Plaskett and Hakeem Jeffries were soliciting money and meetings from Epstein after he was a convicted sex offender. The Democrat hoax against President Trump has been repeatedly debunked, and the Trump administration has done more for Epstein’s victims than Democrats ever have by repeatedly calling for transparency, releasing thousands of pages of documents and calling for further investigations into Epstein’s Democrat friends.”
Jackson has a point.
Democrats were cherry-picking which photos to release, even if many of the men pictured were aligned with progressives. That includes the president, who was a Democrat when he and Epstein were running together in New York in the 2000s. Trump didn’t register as a Republican until 2009. Now whether the choice of photos and timing was designed to shield political friends or weaponize against perceived enemies isn’t clear. What is clear is that it doesn’t take a genius to see that none of this is a hoax.
The victims are real. The flight logs are real. The millions that flowed into Epstein’s bank account have wire transfer confirmation numbers that can be traced. What Democrats are doing with the information is politics as usual. And you don’t want politics to dictate who gets justice and who gets vilified.
Whatever the politicians’ intentions, Americans can decide how to react to the disclosures. And what the men around Epstein did with the information they gathered on his jet or his island fits squarely at the heart of the national conversation about masculinity. What kind of men could allow such abuse to continue?
I’m not saying the intelligent men in Epstein’s ecosystem did something criminal, but the lack of whistleblowing before his arrest raises questions about their fortitude for right and wrong. And the Trump White House trying to characterize this conversation as a partisan witch hunt — a hoax — is an ineffective strategy because the pattern with their use of that word is so clear.
We saw what happened on Jan. 6, and Trump tells us the investigation is a hoax. We hear the recording of him pressuring Georgia officials to find votes, and he tells us the investigation is a hoax. Trump campaigned on affordability issues — the cost of bacon, no taxes on tips — but now that he’s in office such talk is a hoax by Democrats. As if we don’t know the price of groceries in real time. Ten years ago, Trump told us he had proof that President Obama wasn’t born in the U.S. We’re still waiting.
In his book, “Art of the Deal,” Trump framed his lies as “truthful hyperbole” but by now we should understand for him hyperbole matters more than truth — and his felony convictions confirm that some of his claims were indeed simply false.
So if there is a hoax, it is the notion that none of the brilliant men whom Epstein kept in his orbit had any idea what was going on.
YouTube: @LZGrandersonShow
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Ideas expressed in the piece
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The release of photographs and documents from the House Oversight Committee demonstrates that Epstein moved freely among some of the world’s most accomplished and intelligent individuals, including Rhodes scholars, technology leaders and artists.
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Either these prominent men failed to recognize warning signs despite obvious indicators like Epstein’s “Lolita Express” nickname referencing a novel about child sexual abuse, or they recognized the reality and chose silence—neither explanation reflects well on their character.
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Claims that this is a hoax lack credibility because the evidence is concrete: the victims are real[1], the flight logs are documented[1][3], and the millions flowing through Epstein’s bank accounts have verifiable wire transfer confirmation numbers.
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The apparent lack of whistleblowing from the men in Epstein’s ecosystem before his 2019 arrest raises serious questions about their moral fortitude and willingness to stand against wrongdoing.
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The Trump administration’s strategy of characterizing these disclosures as a partisan witch hunt is ineffective, given the pattern of applying the term “hoax” to numerous matters that subsequently proved to be substantiated, from investigations into January 6 to documented pressuring of Georgia officials.
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Regardless of whether Democrats’ selection of which photographs to release was politically motivated, legitimate questions about masculinity and moral responsibility remain central to the national conversation.
Different views on the topic
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Democrats selectively released cherry-picked photographs with random redactions designed to create a false narrative while attempting to shield their own political allies, including figures like Stacey Plaskett and Hakeem Jeffries who solicited money and meetings from Epstein after his conviction.
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The timing and selection of photographs released by House Democrats appear strategically designed to weaponize the Epstein matter against political opponents while deflecting scrutiny from Democratic figures who also maintained connections to the convicted sex offender[2].
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The Trump administration has demonstrated greater commitment to transparency on the Epstein matter through the release of thousands of pages of documents and calls for further investigations into Epstein’s connections to Democratic associates.
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Characterizing this as purely a partisan response overlooks the fact that prominent figures across the political spectrum, including those who were Democrats when they associated with Epstein in the 2000s, had connections requiring examination[2].
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The Department of Homeland Security (DHS) said Friday that more than 2.5 million illegal immigrants have left the United States since President Donald Trump returned to office this year, citing a sweeping immigration crackdown that it says led to the “most secure border in American history.”
In a year-end report highlighting the agency’s accomplishments, DHS claimed that illegal border crossings plunged 93% year-over-year, fentanyl trafficking was cut in half, and hundreds of thousands of criminal illegal immigrants were either arrested or deported, amounting to a dramatic shift from the Biden administration.
“In less than a year, President Trump has delivered some of the most historic and consequential achievements in presidential history—and this Administration is just getting started,” Homeland Security Secretary Kristi Noem said in a statement. “Under President Trump’s leadership, we are making America safe again and putting the American people first. In record-time we have secured the border, taken the fight to cartels, and arrested thousands upon thousands of criminal illegal aliens.”
EXCLUSIVE: MILLIONS OF ILLEGAL IMMIGRANTS LEAVE US IN RECORD-BREAKING YEAR UNDER TRUMP POLICIES, DHS SAYS
U.S. Secretary of Homeland Security Kristi Noem said Friday that President Donald Trump “has delivered some of the most historic and consequential achievements in presidential history” since he took office on Jan. 20. (Anna Moneymaker/Getty Images)
While Trump’s first year back in office was “historic,” the administration “won’t rest until the job is done,” Noem added.
Of the 2.5 million illegal immigrants that left the country since Trump took office on Jan. 20, an estimated 1.9 million self-deported and more than 622,000 were deported, according to DHS.
The Trump administration has encouraged anyone living in the United States illegally to return to their native countries using the Customs and Border Protection (CBP) Home Mobile App, which allows users to claim a complimentary plane ticket home and a $1,000 exit bonus upon their return.
BIDEN ADMIN MARKED ILLEGAL IMMIGRANT, ALLEGED MURDERER AS ‘NON-ENFORCEMENT PRIORITY,’ DHS REVEALS
United States Customs and Border Protection sent boats to the Chicago River amid “Operation Midway Blitz” on Thursday, Sept. 25, 2025. (Chicago Tribune/Getty Images)
CBP seized nearly 540,000 pounds of drugs this year, almost a 10% increase compared to the same time frame in 2024, DHS said, adding that the U.S. Coast Guard has retrieved roughly 470,000 pounds of cocaine, or enough to kill 177 million people.
Taxpayers have been saved more than $13 billion at DHS, the agency said, noting that several agencies, including the Federal Emergency Management Agency (FEMA), Cyber and Infrastructure Security Agency (CISA), and the Secret Service have returned “to their core missions.”
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Secretary of Homeland Security Kristi Noem touted the progress made during President Trump’s first year back in office. (Anna Moneymaker/Getty Images)
Secretary Noem awarded $10,000 bonuses earlier this year to TSA officers and personnel who displayed exemplary service, overcame hardships, and displayed the utmost patriotism during the 43-day government shutdown.
DHS touted the administration’s achievements, asserting that “countless lives have been saved” this year and “the American people have been put first again.”
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