‘Not a great day for US Supreme Court’: Neal Katyal on Trump immunity ruling

We spoke to Neal Katyal, who was the acting US Solicitor General under President Obama, about the Supreme Court decision

Jackie Long: Can I just begin by asking you, in the simplest of terms if you would, what has just happened?

Neal Katyal: The Supreme Court, by a six to three decision, has largely sided with Donald Trump on his claims that he is absolutely immune from the criminal law. This case came up in the context of the January 6th prosecution against Donald Trump by the special prosecutor in Washington, DC, a federal Justice Department official, and the allegation was that Trump had conspired to engage in election fraud and to effectively throw out the votes on January 6th. What the Supreme Court today said is that they went through the different allegations in the indictment. They said some are absolutely immune and can’t be touched by the criminal law, and others need to go back to the trial court for an evaluation of whether they are truly official acts deserving of immunity, or unofficial acts, private acts that are undeserving of immunity and that can be reached by the criminal law.

Jackie Long: So that key distinction is, what constitutes an official act. Is that right?

Neal Katyal: That’s exactly right. And one of the most important points the Supreme Court majority made today was that when Trump was accused of pressuring Justice Department officials to impugn the election and to stop the January 6th counting of the votes, that was an official act and not a personal one. So they’ve set a very low bar for what is an official act. They’ve said everything else is presumptively an official act, but has to be decided by the trial court. And this is a six to three decision written by our Chief Justice, joined by five other appointees to the court, all nominated by Republican presidents. The three justices nominated by Democratic presidents dissented, which means they disagreed. The dissents were incredibly strong, Justice Sonia Sotomayor concluding her dissent by saying, with fear for our democracy, I dissent.

Jackie Long: You’ve mentioned the trial related to his role in the events of the January 6th insurrection. What are the implications for that case now?

Neal Katyal: It’s going to go back to the trial court, where they’ll be presumably briefing, and indeed probably some hearings, indeed evidentiary hearings, on questions like, when Trump pressured his Vice President about January 6th, was that an official act, or was that an unofficial act? When Trump did stuff to engage with false electors, different people in the states, who wanted to throw out the state elections and say, we get to appoint electors to the Electoral College, was that official or unofficial? All of this is going to take place in the trial court. But what’s not going to take place in the trial court, because this Supreme Court decision is so complicated, is a trial about Donald Trump and his behaviour on January 6th, at least before the November election. If Trump loses in November, that decision today permits a criminal case against him, so long as they’re unofficial acts. But should he win in November, he can nullify the entire prosecution with the stroke of his pen.

Jackie Long: He was very quick to call it a big win today. Is he right?

Neal Katyal: He is right, and I think the dissent by Justice Sonia Sotomayor begins by saying Donald Trump got everything he asked for today, and he got even more.

Jackie Long: This has much wider-reaching consequences, not just for President Trump. The justice you talk about, one of the three judges dissenting, poses this extraordinary assertion that if a future president wants to order the Navy Seals to assassinate a rival, they’d be immune. I mean, can that be true?

Neal Katyal: I would have thought not. In fact, with all respect to your great country, that’s what we fought our revolution about and about King George the Third. And so this is really, in my mind, a betrayal of kind of first constitutional principles. And to have it done by a Supreme Court, with a six to three line-up that looks partisan to many Americans and to many people around the world, this is not a great day for the United States Supreme Court.

Jackie Long: We have watched the Supreme Court making pretty radical decisions, upending precedent on everything from abortion to today, this question about presidential immunity. What does it say about the standing of the Supreme Court at the moment, in your view?

Neal Katyal: Public opinion polls have it at just about the lowest it’s been in recorded history and I fear that today’s decision is going to fuel those flames. I think it’s inevitable that the Democratic nominee for president, whoever that may be, maybe Biden or someone else, will run against the Supreme Court, for decisions like the one today and the abortion decision that you mentioned, and that’s a tragic thing because, in my mind, the Supreme Court is the crown jewel of our American democracy. It is the thing that stood up to end desegregated schools, were to establish canonical principles, that have guided our society. And I’m worried that today’s decision is going to knock some of the institutional legitimacy off of the United States Supreme Court.

Jackie Long: It comes, of course, in the middle of the election runoff. Does this now become an election issue?

Neal Katyal: 100 percent. I don’t see how it can’t be and a decision like today, if you had a president who wasn’t careful about the rule of law as Joe Biden, would enable him to do all sorts of things in the next six months. Maybe even cancel the election, and say, that’s an official act because he’s got to preserve our democracy. There’s no logical stopping point to where these claims of immunity end, which is why our constitutional system has been so reticent to accept any of them until today.