One of the memorable moments in President Trump’s 2016 campaign is the sneering question posed to him at the Democrats’  national convention — “Have you even read the U.S. Constitution?” Seems he has, we’d say, and never more so than this morning as the 45th president was found by the Supreme Court to have a better understanding of the Constitution than the 46th president, his attorney general, and an appeals circuit.

This is but the first thing we take from the stunning decision of the Supreme Court on immunity for former presidents in respect of official acts. The court, by six to three vote, discovers that the “nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority.” A president is also entitled to “presumptive immunity” for all official acts.

The decision vindicates President Trump, the first person, as near as we can tell, to really press this point in the wake of January 6, 2021. His case was levied by a brilliant legal team in the face of sneering and defeats at nigh every turn in the district and circuit courts. It’s not an absolute victory. There could be, as our A.R. Hoffman reports, litigation in the lower courts for years. It will, though, make it harder for the special prosecutors to prevail in this case.

One of the things that jumps out at us from this case is the shocking overreach of the Justice Department. It would not be too much to say that the Department’s behavior, and that of its special prosecutor, in this case is an example of exactly why the immunities the Supreme Court vouched safe are necessary. When, after all, was a special prosecutor named? It was just two days after President Trump announced that he would stand for president in 2024.

That is, this was, in our view, a political prosecution from the get go — and, in and of itself, one example of why immunity is so essential for former presidents as well as current ones. Chief Justice Roberts, writing for the majority, marked the court’s fear of “a pall of potential prosecution,” as it was put in McDonnell v. United States, that might lead to a “hesitation” on the part of a president “to execute the duties of his office fearlessly and fairly.” 

Without immunities, the court worried, a “President inclined to take one course of action based on the public interest may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office. And if a former President’s official acts are routinely subjected to scrutiny in criminal prosecutions, ‘the independence of the Executive Branch’ may be significantly undermined.” Unofficial acts remain fair game for prosecution.

The court, quoting 70 Federalist, addressed the importance of vigor and energy in the president. That is a point well-marked by The Great Scalia in his celebrated dissent in Morrison v. Olson, where he opposed the concept of an independent counsel. Scalia lost that argument in the Supreme Court. He proved prophetic, though, when the Congress refused to renew the independent counsel act following abuses in the pursuit of President Clinton.

Part of the wisdom of the court in Trump v. U.S. is that it got past the notion — advanced by a passionate dissent penned by Justice Sonia Sotomayor — that immunity violates the principle that everyone is equal under the law. The fact is that there are all kinds of immunities in American law, some absolute. The speech and debate clause, say, holds that for any speech or debate in either house, no member may be questioned — i.e., tried — in any other place.

We have always had more confidence in decisions which have a strong dissent, as this one does. Yet the immunities the court just protected apply not only to the 45th but all former, and future, presidents. The court is not condoning Trump’s post-election conduct, but underscoring the difficulty of policing it via the courts. It leaves voters the final say, via the immunities that can be discerned by reading the Constitution with a clear and open mind.