INDIANAPOLIS — While a 6-3 U.S. Supreme Court ruling expanded presidential immunity from prosecution for “official acts” taken while in office, the fate of Donald J. Trump now is firmly in the hands of American voters this November.
And in an expected evidentiary hearing that could come before Election Day, it could be former vice president and current Carmel, Ind., resident Mike Pence who sheds additional light on the events leading up to the Jan. 6, 2021 U.S. Capitol insurrection and whether these acts were “official” or “unofficial.”
Chief Justice John G. Roberts, the Long Beach, Ind., native writing the majority opinion, said, “A former president is entitled to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. There is no immunity for unofficial acts.”
But in a scathing dissent, Justice Sonia Sotomayor said, “The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.
“Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends,” Sotomayor continued. “Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today. Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.”
Taking part in the 6-3 majority, conservative Associate Justices Clarence Thomas and Samuel Alito resisted calls to recuse themselves for statements and actions by themselves and their wives that were deemed to be sympathetic to Jan. 6, 2021 U.S. Capitol insurrectionists. Ginni Thomas had written a number of texts and emails to Trump chief of staff Mark Meadows urging him to challenge the Electoral College certification on Jan. 6, 2021. Alito’s wife, Martha-Ann, allegedly displayed an upside-down American flag at their Virginia home after the insurrection.
Indiana Attorney General Todd Rokita said in a statement, “I was proud to advocate in an 18-state brief for the result we saw today — the U.S. Supreme Court’s decision that former presidents such as Donald Trump have immunity for official acts taken while in office. The Left has made an art form out of weaponizing our judicial institutions against their political adversaries, but no matter which side does it, that kind of manipulation is wrong and dangerous to our republic. With this ruling, the court took strong and necessary action to protect ALL American presidents from partisan political prosecutions pertaining to conduct involving their official actions.”
U.S. Rep. Jim Banks, the Republican Indiana U.S. Senate nominee, said in a statement, “Today’s decision is a massive win for the Constitution and a massive blow to Joe Biden, who would’ve rather prosecuted President Trump than run against him in a fair and honest campaign. Corrupt Democrats tried to take American voters out of the 2024 election by twisting the rule of law and weaponizing our justice system. But the Democrats failed. In November, voters will get to decide between four more years of disaster under Joe Biden or returning to the Trump policies that gave us peace abroad and prosperity at home.”
Banks tweeted on X, “The Supreme Court’s decision should discredit Jack Smith’s illegitimate witch hunt once and for all!”
While the Supreme Court’s expanded presidential immunity case was remanded back to the D.C. Circuit Court, it could be former Vice President Pence who will be in the best position to shed more light on this case prior to the election.
While an out-right trial is unlikely to be scheduled before November, Federal District Judge Tanya Chutkin of the District of Columbia could hold evidentiary hearings before the election, and Pence would be compelled to testify.
According to a Nov. 28, 2023 account published by ABC News, Pence offered “harrowing details” about how, in the wake of the 2020 presidential election, then-President Trump surrounded himself with “crank” attorneys, espoused “un-American” legal theories, and almost pushed the country toward a “constitutional crisis,” according to sources familiar with what Pence told investigators.
ABC News reported that Pence also told investigators he’s “sure” that in the days before Jan. 6, he informed Trump he still hadn’t seen evidence of significant election fraud. “I told him I thought there was no idea more un-American than the idea that any one person could decide what electoral votes to count,” Pence allegedly told Smith’s team. “I made it very plain to him that it was inconsistent with our history and tradition.”
With the pressure on Pence mounting, he concluded on Christmas Eve 2020 that he would follow Trump’s suggestion and let someone else preside over the proceedings on Jan. 6.
“Not feeling like I should attend electoral count,” Pence wrote in his notes in late December, according to ABC News and the special counsel. “Too many questions, too many doubts, too hurtful to my friend. Therefore I’m not going to participate in certification of election.”
Then, sitting across the table from his son, Michael, a Purdue graduate and Marine Corps pilot, while on vacation in Colorado, his son said to him, “Dad, you took the same oath I took” — it was “an oath to support and defend the Constitution,” Pence recalled to Smith’s investigators, sources said.
That’s when Pence decided he would be at the Capitol on Jan. 6 after all, setting in motion a series of events that had a mob of Trump supporters storming and ransacking the U.S. Capitol, injuring more than 140 police officers. Many of the insurrectionists were chanting, “Hang Mike Pence.” The Pence family, including U.S. Rep. Greg Pence, narrowly escaped the mob.
Former Vice President Dan Quayle had advised Pence that he had no option but to preside over the congressional certification. In the Bob Woodward and Robert Costa book “Peril,” the two recount a conversation between the two Hoosier vice presidents:
“Mike, you have no flexibility on this. None. Zero. Forget it. Put it away,” Quayle told him.
“You don’t know the position I’m in,” Pence told Quayle.
“I do know the position you’re in,” Quayle responded. “I also know what the law is. You listen to the parliamentarian. That’s all you do. You have no power.”
After the SCOTUS ruling was announced late Monday, Pence tweeted on X, “Two Big Victories for Liberty at the Supreme Court: The Justices continue their repair work on the separation of powers.”
Brian A. Howey is senior writer and columnist for Howey Politics Indiana/State Affairs. Find Howey on Facebook and X @hwypol.
