What the Supreme Court did in the Presidential immunity case (Trump v. United States)

The Supreme Court has issued its most important case on Presidential authority in decades, and it might be the most important such case in the history of the Supreme Court. The 6-3 majority holds for the first time that the President enjoys certain implied immunities that will make it difficult, but not impossible, to charge a former president for criminal conduct. 

The case is Trump v. United States, issued on July 1. This case reaches the Court because, in summer 2023, a grand jury in Washington, D.C., indicted former president Donald Trump arising from his refusal to accept the results of the November 2020 election. These acts included conspiring with others to advance knowingly false claims of election fraud to get state and local officials to change the electoral votes in his favor, organizing a fraudulent slate of electors in targeted states to undermine the real electors chosen on Election Day, strong-arming the Vice President to ignore the certification on January 6, 2021 so that Trump may take the oath of office on January 20, 2021, and pushing Congress to delay the certification on that date. These charges are shocking and unprecedented in American history.

The charges are so unprecedented that the Supreme Court has never had a case like this, and it has never determined when and under what circumstances a former President may face prosecution for crimes that he committed in office. (Bear in mind that during the Watergate scandal, when President Nixon resigned in 1974, it was assumed that Nixon could be charged criminally for covering up crimes relating to his re-election campaign). Without any precedents on point, and without any provisions in the Constitution that directly speak to this issue, the Court has to decide upon a legal framework.

As an aside, the Court frequently must decide upon a legal framework in interpreting the Constitution, which mostly speaks in generalities and statements of principle. For that reason, nearly all constitutional doctrine is  judge-made. It is the Supreme Court Justices who determine what the constitutional provisions, and the amendments (including free speech, due process, search and seizures, etc.) really mean. The Court does this by devising multi-part legal standards, often incorporating a balancing test that weighs competing interests. For example, in the free speech context, that usually involves balancing the right to expression with the government's need to maintain an orderly society. These legal frameworks are then applied by the lower courts, and lawyers must study them in preparing their cases or giving legal advice. Constitutional law is really political science, and the Justices are the most powerful political scientists in the country, determining how our society should be organized in light of the principles in the Constitution.

Chief Justice Roberts writes the majority opinion. He draws from the overriding principle that the Constitution gives the President enormous authority and discretion as the head of the Executive Branch and the sole official elected by the nation as a whole (along with the Vice President). As such, Roberts writes, "There accordingly exists the greatest public interest in providing the President with the maximum ability to deal fearlessly and impartially with the duties of the office," without having his energies "diverted by proceedings that might render him unduly cautious in the discharge of his official duties." That language derives from a Supreme Court case from 1982, Nixon v. Fitzgerald, which held (under another judge-made principle) that a former President cannot face civil liability for actions undertaken in office. That case did not involve criminal liability, but it's the closest case we have to the Trump indictments, though Roberts notes that a former President would be exposed to far fewer (if any) criminal prosecutions than civil lawsuits by federal employees or other victims of his policies. These principles lead to this overriding guideline, premised on the concern that fear of future criminal liability (once he leaves office) may interfere with the President's duty make decisions as he sees fit:

Although the President might be exposed to fewer criminal prosecutions than the range of civil damages suits that might be brought by various plaintiffs, the threat of trial, judgment, and imprisonment is a far greater deterrent. Potential criminal liability, and the peculiar public opprobrium that attaches to criminal proceedings, are plainly more likely to distort Presidential decisionmaking than the potential payment of civil damages.

The hesitation to execute the duties of his office fearlessly and fairly that might result when a President is making decisions under “a pall of potential prosecution,” raises “unique risks to the effective functioning of government.” 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. The Framers’ design of the Presidency did not envision such counterproductive burdens on the “vigor[]” and “energy” of the Executive.

The majority in this case breaks down Presidential actions into three parts, each with different consequences under the criminal law:

1. Presidential decisions drawing from his core executive duties, as expressly set forth in the Constitution, can never give rise to a criminal prosecution. This would include decisions relating to pardons, the removal of subordinate executive officers, and other decisions that fall within his exclusive constitutional authority.

2. As for other Presidential decisions drawing from his official duties, the President has presumptive immunity from criminal prosecution. The "official duties" element of this test is quite broad. Roberts says they include any Presidential acts "within the outer perimeter of his official responsibility." The "outer perimeter" qualifier is key. That would include just about anything the President does in office, including addressing the public. The Court writes that "the immunity we have recognized extends to the outer perimeter of the President's official responsibilities, covering actions so long as they are not manifestly or palpably beyond his authority." The prosecutor can overcome that presumption in certain circumstances, but those circumstances appear to be limited. This is the most controversial part of the majority's ruling. Roberts writes:

Such an immunity is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution. . . . At a minimum, the President must therefore be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no “dangers of intrusion on the authority and functions of the Executive Branch.”

Read the italicized language carefully. The President's actions under his official authority (which covers a wide range of decisionmaking) is presumably untouchable under the criminal laws unless the prosecutor can convince the trial court that the prosecution would not intrude on that presidential authority. That legal principle is vague, and the judges and lawyers who have to apply this new constitutional rule are going to have to do the best they can. I am not sure what this language really means.

3. The President's unofficial actions are not immune from criminal liability. 

We have limited discussion on (1) and (3). This is really an "official act" case. Since this case reaches the Supreme Court prior to trial and without a fully-developed factual record, the Court provides guidance for the trial court judge who will have to review and apply this ruling. This portion of the ruling has some critical points that further develop the new constitutional rules devised by the 6-3 majority.

First, Presidential motives are not relevant in determining whether his acts violate the criminal law. We look to his actions, not his intent. This concept is normally foreign to the criminal law, which usually examines the criminal defendant's motives for committing a bad act. But in the Presidential context, the Court writes, the concern is that the President might worry that "his motives that control his official conduct may, at any time, become the subject of inquiry." The guiding principle for this is, again, the need for the President to make decisions in the national interest without being unduly second-guessed years later, as such second-guessing may put a chilling effect on bold Presidential decisionmaking. Note that the Court's concern about unhampered Presidential decisionmaking assumes that other Presidents in the future might take their duties more seriously than Trump and read their briefing books and have rational discussions with their advisors. Supreme Court Justices will tell you that their rulings are for the ages and cannot always take into account the peculiarities of the parties before them.

Second, official acts are immune from criminal prosecution and cannot be used in any trial against a former President, including as background evidence or evidence that would place his unlawful acts in context. This rule is also unique to this case. In many trials, the judge may allow the jury to hear otherwise inadmissible evidence but with an instruction that that evidence may be considered for a limited purpose. This comes up a lot with hearsay testimony; it may be relevant on a limited point at trial, and we presume that juries take that limiting instruction seriously. But Roberts' concern is that using official acts for any purpose would "invite the jury to examine acts for which a President is immune from prosecution to nonetheless prove his liability on any charge," and "raise a unique risk that the jurors' deliberations will be prejudiced by their views of the Presidential policies and performance while in office." By this point in the ruling, Roberts is drawing very little from prior Supreme Court cases and is devising general principles that support the majority's views of how a President must make decisions without the chilling effect of a possible criminal prosecution after he leaves office.

Third, looking to the allegations against Trump, the majority says that:

1. Trump's leveraging and even threatening his Justice Department to convince certain states to offer up a fraudulent set of electors draws from the core constitutional function outlined above in (1) because he is allowed to consult with the Justice Department in order to ensure the laws are faithfully executed, no matter how we define that phrase. Relatedly, Trump's threat to fire the Acting Attorney General as part of his scheme to overturn the election results is absolutely immune from criminal prosecution, as the President has authority to remove his appointees, even if he does so to promote a sham or improper purpose.

2. What about Trump's arm-twisting the Vice President to reject the certification on January 6, 2021 before Congress? This was an official act, and therefore presumptively immune, but the President actually has no role in the certification, so the prosecutor may be able to proceed on this charge, as it may not intrude upon Presidential authority. On the other hand, the President is expected to talk and consult with his VP, so this sequence may be absolutely immune, as well. The prosecutors in this case will have to overcome the presumption of immunity on this issue, and the trial court will make the final decision, subject to review by the Court of Appeals and then perhaps the Supreme Court.

3. As for Trump's arm-twisting state and local officials to reject the legitimate Electoral College certification in favor of sham electors, while Trump's lawyers argued that this was undertaken to ensure the integrity of the electoral process (a Presidential function), the prosecutors respond that there is no plausible source of constitutional authority for the President to authorize an alternate slate of electors in a way that would interfere with the votes of legitimate electors. The lower courts will have to sort this out.

You get the picture. Every constitutional doctrine has room for each side to make their arguments. That is the nature of constitutional balancing tests. Nothing is really predictable under the Constitution, especially when the issue reaches the Supreme Court, which may either be writing on a blank slate or ruling on a matter upon which the lower courts have disagreed. Most Supreme Court rulings therefore can go either way depending on the ideological makeup of the Court. 

In dissent, Justice Sotomayor is on fire, stating the majority is placing the President above the law and that our democracy may be imperiled by this ruling. She notes that the Nixon v. Fitzgerald precedent that the majority relies on for much of its reasoning bears little relationship to this case, as the Nixon case involved civil liability (and the possibility of hundreds of civil lawsuits after the President leaves office) and criminal cases against former Presidents will always be limited in number, and in fact have never happened in 250 years of American history. She notes that the Justices in the Nixon case, including conservative Justices appointed by Nixon himself, said the reasoning in that case would not apply in the criminal context. 

Sotomayor sums up this way: 

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. 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.

The majority and dissenting opinions offer starkly different views of constitutional law, each drawing from different constitutional and practical principles about how these cases might and should shake out in the unlikely event a former President is charged with criminal conduct. Bear in mind the six Justices in the majority were all appointed by Republicans, who generally endorse a "strong executive" model under the Constitution. Three of the majority Justices were themselves appointed to the Court by Trump. The three dissenters (all women) were appointed by Democratic Presidents. There is no "official" way to interpret the Constitution, which itself offers no guidance on how the courts should apply it. Constitutional law is man-made and woman-made, and it will always boil down to which side has more votes on a given issue. Broad presidential immunity from criminal liability gets six votes in this case, and the contrary view -- that no one is above the law, and we can trust the court system to treat every defendant fairly, no matter who they are -- gets three votes.