Supreme Court Preview: Trump v. US – A deeper dive into Presidential Immunity

by Techno Fog

On April 25, 2024, the Supreme Court will hear arguments in Trump v. United States – Special Counsel Jack Smith’s District of Columbia case against Donald Trump – where the Court will consider:

“Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”

Presidential immunity from criminal prosecution is a novel, complex, and consequential question of law never before answered by the Supreme Court. In this article, we seek to explain the Constitutional and historic basis for presidential immunity, and the potential conclusions the Supreme Court might reach.

But before we get there, let’s start with the timing of the Court’s eventual decision.

Typically, the Supreme Court takes anywhere from 3 to 6 months to issue its opinion after oral argument. There is no set deadline to publish a decision, so sometimes it can take a month or two longer. There are, however, times where the Court rules quickly. In Trump v. Anderson – where the Supreme Court unanimously rejected Colorado’s attempt to exclude Trump from the 2024 Republican primary – the opinion was issued on March 4, 2024, just less than one month after oral argument. In that case, the Supreme Court was under the gun to make an expedited ruling, as the Colorado presidential primary took place on March 5 (the day after the Supreme Court released its opinion).

There are sound arguments for believing that the Supreme Court will follow its typical timeline in Trump’s immunity case, much to the disappointment of those who want Trump tried before the November 2024 Presidential election. First, there is no impending catalyst requiring expedited decision (contrary to the pleas of Special Counsel Smith), as there was for the Colorado ballot case. Second, Trump v. United States is one of the most important questions the Supreme Court will ever consider. The resolution of this issue, which could potentially threaten a president with criminal exposure after he has left office, requires deliberation and care – meaning time. Therefore, we might see an opinion by late July at the earliest or the fall of 2024 at the latest.

Background

Both the District of Columbia trial court and the Court of Appeals for the District of Columbia Circuit rejected the concept of immunity from criminal prosecution for a president’s official acts.

In its February 6, 2024 opinion, the DC Circuit held that there was no constitutional or functional “justification for immunizing former Presidents from federal prosecution” for acts that are alleged to violate federal criminal law. It rejected Trump’s contention that the Constitution – specifically the separation of powers doctrine – provided presidential immunity for official acts, reasoning that “President Trump lacked any lawful discretionary authority to defy federal criminal law.”

Presidential Immunity – An Overview

The general principles supporting presidential immunity start with the Constitution, specifically the tradition of the separation of powers and Article II’s Executive Vesting Clause, which states that “the executive Power shall be vested in a President of the United States of America.”

In the 1803 case of Marbury v. Madison, Chief Justice John Marshall wrote that through the Constitution, “the president is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience.”1 There is “no power” to control executive discretion.”2 The decisions of the executive are “conclusive” and the President’s “acts are only politically examinable.”3

Thirty years later, Justice Joseph Story, in his Commentaries on the Constitution of the United States, would write that a president’s exercise of his political powers – his discretionary decisions – are “subject to no control.”4 Consistent with that observation, the Supreme Court stated in an 1833 case that “when the President exercises an authority confided to him by law,” a jury cannot stand in judgment of his decisions.5 In another case, the Supreme Court held in 1838 that:

“The executive power is vested in a President; and as far as his powers are derived from the constitution, he is beyond the reach of any other department, except in the mode prescribed by the constitution through the impeaching power.”6

Implicit in the separation of powers doctrine – that which Justices Marshall and Story reference – is the “unbroken historical tradition” that “a President may not be ordered by the Judiciary to perform particular Executive acts.”7 The judiciary cannot require a President “to exercise the executive Power in a judicially prescribed fashion.”8 Courts can review the constitutionality of Presidential acts or those acts done by Executive officers, but courts have “no jurisdiction of a bill to enjoin the President in the performance of his official duties.”9

To provide additional support, presidential immunity has already been recognized by the Supreme Court – albeit in a different context. In Nixon v. Fitzgerald, the Supreme Court recognized “absolute Presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility.”10 Looking to history and our Constitutional tradition, the Court reasoned that the President “has discretionary responsibilities in a broad variety of areas” and that without immunity, the President would be put on trial “on virtually every allegation that an action was unlawful, or was taken for a forbidden purpose.”11 In his concurring opinion, Justice Berger rightfully observed that the separation of powers doctrine foreclosed on judicial (or legislative) oversight of “Presidential decisionmaking.”12

Many of the prudential considerations discussed in Nixon apply with greater force to a president’s immunity from post-presidency criminal prosecution. Threat of prosecution would have a substantial effect on a president’s decisions and political calculations, and would subject the president’s broad powers to second-guessing, retaliation from political adversaries, and “would raise unique risks to the effective functioning” of the Executive branch.

This is especially true in a system where the “criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something.”13 To emphasize that point – and the dangers of prosecuting a former president – Trump faces imprisonment for Constitutionally protected activities that are within the scope of a President’s authority: petitioning Congress and demanding official action “due to flaws in the election or inaccuracies in the results” of that election, all of which are arguably covered under Article II.

And remember, Trump’s charges include conspiracy to defraud the United States (18 U.S.C. § 371) for seeking to influence federal government action through allegedly “false claims that there had been outcome-determinative fraud in the 2020 presidential election.” If it were a crime for a president to make allegedly false statements to influence Congress, then which president could escape prosecution?

As the Coolidge Reagan Foundation informed the Court in their briefing, this type of application of the law could mean charges for President Obama’s lies about Obamacare (“if you like your health care plan, you can keep it”) or President Biden’s lies about the Inflation Reduction Act or President Bush’s lies about Iraq’s weapons of mass destruction – all of which were done to influence Congressional action. Or the knowingly false statements from President Bush and President Obama (and others in the Executive branch) concerning our progress in Afghanistan, which were made with the specific intent of securing additional funding and support for that war from Congress.

Throughout Trump’s appeal, the Government and critics (and the DC Circuit) have argued that presidential immunity would cause the president to be “above the law.” They have presented a parade of horribles, theorizing that a president could take part in assassinations of political opponents or other crimes with zero accountability.

But that’s not true – the law is the Constitution, and the president is still subject to its bounds and constraints. Article II’s impeachment clause provides the mechanism to remove and prosecute: the president “shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” Alexander Hamilton noted that a president could be prosecuted “after” and “subsequent” to his impeachment and conviction by the Senate. There was no contemplation that, absent impeachment, a president would be prosecuted for official acts after his term ended.

Moreover, the absence of presidential criminal immunity creates a “nonsensical” system that, as the ACLJ observed in their amicus curiae brief, would allow for a president to escape civil liability while being prosecuted criminally for the exact same act:

Immunity now depends on whether an action has been brought through a criminal mechanism instead of a civil one. Many civil wrongs also constitute crimes. For example, conspiring to violate constitutional rights gives rise to civil liability. 42 U.S.C. § 1985 (providing for civil liability for conspiracy to violate rights). It is also a crime. 18 U.S.C. § 241 (making the same conduct criminal).

But – Presidential Immunity is no certainty.

This isn’t to say that the Supreme Court will agree. While there are solid arguments in favor of presidential immunity from criminal prosecution for their official acts, they aren’t so strong as to guarantee a Supreme Court majority. After all, there is no “express” Constitutional prohibition against prosecuting a former president. Rather, immunity is strongly implied through the nature of the office, Supreme Court precedent, by the impeachment clause in Article II, by tradition (no other former presidents have been prosecuted), and the nature of our system’s separation of powers. (We’re limited on space so I’ll limit this section to general observations.)

To briefly explain, it is well-settled law that presidential actions are subject to judicial review. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (where the Supreme Court held that President Truman’s seizure of steel mills was unconstitutional). Presidents themselves are not immune from civil liability for private conduct (Bill Clinton). Members of the legislature and judges, as the DC Circuit correctly noted, “can be criminally prosecuted under generally applicable laws for their official acts.” Senator Robert Menendez currently faces charges including conspiracy to commit bribery and extortion. And Nixon himself was an unindicted co-conspirator relating to Watergate, though his conduct was widely different than Trump’s and the question of whether he could be criminally charged was never answered. It’s quite possible that at least five members of the Court will agree that with the DC Circuit that “former President Trump’s actions allegedly violated generally applicable criminal laws, meaning those acts were not properly within the scope of his lawful discretion” and thus is not provided structural immunity.

This gets us to what the Supreme Court might decide.

The Supreme Court has a number of options – many of them proposed by Trump, the Government, and the various organizations that filed amicus briefs. Here they are:

1. Presidential immunity applies, consistent with the president’s civil immunity, to include “all actions within the outer perimeter of the President’s official responsibility.” This would require dismissal of the criminal action.
2. Reject presidential immunity from criminal prosecution. The case against Trump would proceed in Judge Tanya Chutkan’s court, with the trial likely to commence a few months after the ruling.
3. Determine that criminal immunity exists generally, but send the matter back to the district court to determine whether immunity applies to the facts of Trump’s case.
4. Decide on a narrower presidential immunity standard that depends on the “nature of the Presidential function” or a type of qualified immunity “like that afforded to state governors and subordinate executive officials.”
5. Conclude that immunity rests on a two-factor standard: (a) how closely the alleged crime relates “to core Article II” powers; and (b) that the court “account for the urgency of presidential action.”
6. Hold that absent clear Congressional intent, the Government cannot prosecute Trump. None of the statutes in the Trump indictment authorize criminalization of a President’s official acts. The Court could conclude that the various statutes must specify that the President is subject to the laws.

We’re leaning towards #3 – that the Court holds criminal immunity exists generally, but that the district court must determine whether the doctrine applies to the facts of Trump’s case. This would require a determination of whether Trump’s conduct involved official acts or were within the outer perimeter of Presidential duties.

Why go this route? Because the trial court (Judge Chutkan) “failed to analyze whether the specific acts underlying the pending criminal action were within the scope of the President’s duties.”14 As Trump’s briefing lays out: “No court has yet addressed the application of immunity to the alleged facts of this case.” Without this assessment, the Supreme Court can’t properly complete its analysis.

This option would also give the Court room to breathe. They wouldn’t be making a consequential decision as to Trump, but would rather let the issue play out until after the election. The final decision on presidential immunity as applied to Trump’s alleged conduct would be saved for another day – or never, if Trump wins and he pardons himself.

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