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
House Republicans push Johnson to go to war with Senate over SAVE Act
NEWYou can now listen to Fox News articles!
Several House Republicans are pushing Speaker Mike Johnson, R-La., to go to war with the Senate GOP over an election security bill that has little chance of passing the upper chamber under current circumstances.
House GOP leaders convened a lawmaker-only call on Sunday in the wake of a massive military operation against Iran launched by the U.S. and Israel.
After leaders briefed House Republicans on how the chamber would respond to the ongoing conflict — including a vote on ending Democrats’ weeks-long government shutdown targeting the Department of Homeland Security (DHS) — Fox News Digital was told that several lawmakers raised concerns about the Senate not yet taking up the Safeguarding American Voter Eligiblity (SAVE America) Act. Among other provisions, the act would require voters in federal elections to produce valid ID and proof of citizenship.
Rep. Derrick Van Orden, R-Wis., was among those pushing the House to reject any bills from the Senate until the measure was taken up, telling Johnson according to multiple sources on the call, “If we don’t get this done, or at least show that we’ve got some backbone, we’re done. The midterms are over.”
Speaker of the House Mike Johnson, R-La., pauses for questions from reporters as he arrives for an early closed-door Republican Conference meeting at the Capitol in Washington, Tuesday, Feb. 3, 2026. (J. Scott Applewhite/AP Photo)
At least three other House Republicans shared similar concerns. Sources on the call said Rep. Brandon Gill, R-Texas, argued that GOP voters were “not enthused” heading into November and that “the single biggest thing” to turn that around would be forcing the Senate to pass the SAVE America Act.
The SAVE America Act passed the House last month with support from all Republicans and just one Democrat, Rep. Henry Cuellar, D-Texas.
JEFFRIES ACCUSES REPUBLICANS OF ‘VOTER SUPPRESSION’ OVER BILL REQUIRING VOTER ID, PROOF OF CITIZENSHIP
Republicans have pointed out on multiple occasions that voter ID measures have bipartisan support across multiple public polls and surveys. But Democrats have dismissed the legislation as an attempt at voter suppression ahead of the 2026 midterms.
Senate Majority Leader John Thune speaks at a press conference with other members of Senate Republican leadership following a policy luncheon in Washington, D.C. on Oct. 28, 2025. (Nathan Posner/Anadolu via Getty Images)
The legislation would require 60 votes in the Senate to break filibuster, which it’s likely not to get given Democrats’ near-uniform opposition. But House Republicans have pressured Senate Majority Leader John Thune to use a mechanism known as a standing filibuster to circumvent that — which Thune has signaled opposition to, given the vast amount of time it would take up in the Senate and potential unintended consequences in the amendment process.
It also comes as Congress grapples with the fallout from the strikes on Iran and the need to ensure safety for the U.S. domestically and for service members abroad, both of which will require close coordination between the two chambers.
Johnson told Republicans several times on the Sunday call that he was privately pressuring Thune on the bill but was wary of creating a public rift with his fellow GOP leader, sources said.
HARDLINE CONSERVATIVES DOUBLE DOWN TO SAVE THE SAVE ACT
“If we’re going to go to war against our own party in the Senate, there may be implications to that,” Johnson said at one point, according to people on the call. “So we want to be thoughtful and careful.”
Sen. Mike Lee, R-Utah, talks with a guest during a “Only Citizens Vote Bus Tour” rally in Upper Senate Park to urge Congress to pass the Safeguard American Voter Eligibility (SAVE) Act on Wednesday, Sept. 10, 2025. (Tom Williams/CQ-Roll Call, Inc via Getty Images)
At another point in the call, sources said Rep. Andrew Clyde, R-Ga., suggested pairing a coming vote on DHS funding with the SAVE America Act in order to force the Senate to take it up.
CLICK HERE TO DOWNLOAD THE FOX NEWS APP
But both Johnson and House Homeland Security Committee Chairman Andrew Garbarino, R-N.Y., were hesitant about such a move given the enhanced threat environment in the wake of the U.S. operation in Iran.
Both spoke out in favor of the SAVE America Act, people told Fox News Digital, but warned the current situation merited leaving the DHS funding bill on its own in a bid to end the partial shutdown, so the department could fully function as a national security shield.
Politics
Trump justifies Iran attack as Congress and others raise objections
According to President Trump, the United States attacked Iran because the Islamic Republic posed “imminent threats” to the U.S. and its allies, including through its use of terrorist proxies and continued pursuit of nuclear weapons.
“Its menacing activities directly endanger the United States, our troops, our bases overseas and our allies throughout the world,” he said in a recorded statement Saturday.
According to leading Democrats in Congress, Trump’s justification is questionable, especially given his claims of having “completely obliterated” Iran’s nuclear capabilities in separate U.S. bombings last June.
“Everything I have heard from the administration before and after these strikes on Iran confirms this is a war of choice with no strategic endgame,” said Rep. Jim Himes (D-Conn.), ranking Democrat on the House Intelligence Committee and part of a small group of congressional leaders — the Gang of Eight — who were briefed on the operation by Secretary of State Marco Rubio.
That divide is bound to remain an issue politically heading into this year’s midterm elections, and could be a liability for Republicans — especially considering that some in the “America First” wing of the MAGA base were raising their own objections, citing Trump’s 2024 campaign pledges to extricate the U.S. from foreign wars, not start new ones.
The debate echoed a similar if less immediate one around President George W. Bush’s decision to go to war in Iraq following the Sept. 11, 2001, attacks, also based on claims that “weapons of mass destruction” posed an immediate threat. Those claims were later disproved by multiple findings that Iraq had no such arsenal, fueling recriminations from both political parties for years.
The latest divide also intensified unease over Congress ceding its wartime powers to the White House, which for years has assumed sweeping authority to attack foreign adversaries without direct congressional input in the name of addressing terrorism or preventing immediate harm to the nation or its troops.
Even prior to the weekend bombings, Democrats including Sen. Adam Schiff of California were pushing Congress to pass a resolution barring the Trump administration from attacking Iran without explicit congressional authorization.
“President Trump must come to Congress before using military force unless absolutely necessary to defend the United States from an imminent attack,” Sen. Tim Kaine (D-Va.), a member of the armed services and foreign relations committees, said in a statement Thursday.
In justifying the daylight strikes that killed Supreme Leader Ayatollah Ali Khamenei just two days later, Trump accused the Iranian government of having “waged an unending campaign of bloodshed and mass murder” for nearly half a century — including through attacks on U.S. military assets and commercial shipping vessels abroad — and of having “armed, trained and funded terrorist militias” in multiple countries, including Hezbollah and Hamas.
Trump said that after the U.S. bombed Iran last summer, it had warned Tehran “never to resume” its pursuit of nuclear weapons. “Instead, they attempted to rebuild their nuclear program and to continue developing long-range missiles that can now threaten our very good friends and allies in Europe, our troops stationed overseas, and could soon reach the American homeland,” he said.
Other Republican leaders largely backed the president.
“The United States did not start this conflict, but we will finish it. If you kill or threaten Americans anywhere in the world — as Iran has — then we will hunt you down, and we will kill you,” said Defense Secretary Pete Hegseth.
“Every president has talked about the threat posed by the Iranian regime. President Trump is the one with the courage to take bold, decisive action,” said Atty. Gen. Pam Bondi.
While Iran’s coordination with and sponsorship of groups such as Hezbollah and Hamas are well known, Trump’s claims about Tehran’s ongoing development of nuclear weapons systems are less established — and the administration has provided little evidence to back them up.
Democrats seized on that lack of fresh intelligence in their responses to the attacks, contrasting Trump’s latest statements about imminent threats with his assertion after last year’s bombings that the U.S. had all but eliminated Iran’s nuclear aspirations.
“Let’s be clear: The Iranian regime is horrible. But I have seen no imminent threat to the United States that would justify putting American troops in harm’s way,” said Sen. Mark Warner (D-Va.), vice chairman of the Senate Intelligence Committee and a member of the Gang of Eight. “What is the motivation here? Is it Iran’s nuclear program? Their missiles? Regime change?”
Senate Minority Leader Chuck Schumer (D-N.Y.) said in a statement that the Trump administration “has not provided Congress and the American people with critical details about the scope and immediacy of the threat,” and must do so.
House Minority Leader Hakeem Jeffries (D-N.Y.) said the Trump administration needs congressional authority to wage such attacks barring “exigent circumstances,” and didn’t have it.
“The Trump administration must explain itself to the American people and Congress immediately, provide an ironclad justification for this act of war, clearly define the national security objective and articulate a plan to avoid another costly, prolonged military quagmire in the Middle East,” he said.
After the U.S. military announced Sunday that three U.S. service personnel were killed and five others seriously wounded in the attacks, the demands for a clearer justification and new constraints on Trump only increased.
Rep. Ro Khanna (D-Fremont) said Sunday he is optimistic that Democrats will be unified in trying to pass the war powers resolution, and also that some Republicans will join them, given that the strikes have been unpopular among a portion of the MAGA base.
Rep. Thomas Massie (R-Ky.), who partnered with Khanna to force the release of the Jeffrey Epstein files, has said he will work with him again to push a congressional vote on war with Iran, which he said was “not ‘America First.’”
Benjamin Radd, a political scientist and senior fellow at the UCLA Burkle Center for International Relations, said that whether or not Iran represented an “imminent” threat to the U.S. depends not just on its nuclear capabilities, but on its broader desire and ability to inflict pain on the U.S. and its allies — as was made clear to both the U.S. and Israel after the Hamas attacks on Israel on Oct. 7, 2023, which Iran praised.
“If you are Israel or the United States, that’s imminent,” he said.
What happens next, Radd said, will largely depend on whether remaining Iranian leaders stick to Khamenei’s hard-line policies, or decide to negotiate anew with the U.S. He expects they might do the latter, because “it’s a fundamentalist regime, it’s not a suicidal regime,” and it’s now clear that the U.S. and Israel have the capabilities to take out Iranian leaders, Iran has little ability to defend itself, and China and Russia are not rushing to its aid.
How the strikes are viewed moving forward may also depend on what those leaders decide to do next, said Kevan Harris, an associate professor of sociology who teaches courses on Iran and Middle East politics at the UCLA International Institute.
If the conflict remains relatively contained, it could become a political win for Trump, with questions about the justification falling away. But if it spirals out of control, such questions are likely to only grow, as occurred in Iraq when things started to deteriorate there, he said.
Israel and the U.S. are betting that the conflict will remain manageable, which could turn out to be true, Harris said, but “the problem with war is you never really know what might happen.”
On Sunday, Iran launched retaliatory attacks on Israel and the wider Gulf region. Trump said the campaign against Iran continued “unabated,” though he may be willing to negotiate with the nation’s new leaders. It was unclear when Congress might take up the war powers measure.
Politics
Video: Trump’s War of Choice With Iran
new video loaded: Trump’s War of Choice With Iran
By David E. Sanger, Gilad Thaler, Thomas Vollkommer and Laura Salaberry
March 1, 2026
-
World4 days agoExclusive: DeepSeek withholds latest AI model from US chipmakers including Nvidia, sources say
-
Massachusetts5 days agoMother and daughter injured in Taunton house explosion
-
Denver, CO4 days ago10 acres charred, 5 injured in Thornton grass fire, evacuation orders lifted
-
Louisiana1 week agoWildfire near Gum Swamp Road in Livingston Parish now under control; more than 200 acres burned
-
Technology1 week agoYouTube TV billing scam emails are hitting inboxes
-
Politics1 week agoOpenAI didn’t contact police despite employees flagging mass shooter’s concerning chatbot interactions: REPORT
-
Technology1 week agoStellantis is in a crisis of its own making
-
News1 week agoWorld reacts as US top court limits Trump’s tariff powers