Supreme Court’s Presidential Immunity Ruling Could Shield Outrageous Abuses of Power
Challenging the federal prosecution stemming from his attempts to overturn the results of the 2020 election, Donald Trump argued that former presidents can be prosecuted for “official acts” only if they are first impeached by the House and convicted by the Senate based on the same conduct. The Supreme Court today rejected that claim, which is based on an implausible reading of the constitutional text. At the same time, the Court held that a former president enjoys “absolute” immunity for “actions within his exclusive constitutional power,” “presumptive” immunity for other “official acts,” and no immunity for unofficial acts.
Since these distinctions require detailed, fact-specific analysis, the justices remanded the case to U.S. District Court for the District of Columbia to determine which parts of the election interference indictment can survive based on the Court’s guidance. That decision probably means any trial in this case won’t begin until after this year’s presidential election. And depending on the outcome of that contest, the case may be dropped before it is resolved.
The Court’s ruling in Trump v. United States is based on the concern that the threat of criminal charges is apt to have a chilling effect on a president’s performance of his duties, especially when he makes controversial decisions that his political opponents might view as illegal. But in weighing the risks of presidential paralysis against the risks of presidential impunity, the ruling raises troubling questions about when and how a former occupant of the White House can be held criminally liable for abusing his powers.
“This case is the first criminal prosecution in our Nation’s history of a former President for actions taken during his Presidency,” Chief Justice John Roberts writes in the majority opinion, which was joined in full by four of his colleagues. “We are called upon to consider whether and under what circumstances such a prosecution may proceed. Doing so requires careful assessment of the scope of Presidential power under the Constitution. We undertake that responsibility conscious that we must not confuse ‘the issue of a power’s validity with the cause it is invoked to promote,’ but must instead focus on the ‘enduring consequences upon the balanced power structure of our Republic.'”
Both sides agreed that a former president can be prosecuted for “unofficial acts committed while in office,” although they disagreed about which conduct described in the indictment fell into that category. Today’s decision points toward resolution of that dispute but leaves many issues unresolved.
When Trump urged the Justice Department to investigate his baseless allegations of election fraud, Roberts says, he was exercising his “conclusive and preclusive” authority. The executive branch has “‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute,” he writes, “including with respect to allegations of election crime.”
The indictment also alleges that Trump “attempted to enlist” Vice President Mike Pence to “use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results.” Trump wanted Pence to reject electoral votes for Joe Biden from several battleground states and send them back to state legislatures to consider whether he actually won them. When the president and the vice president “discuss their official responsibilities,” Roberts says, “they engage in official conduct.” The government therefore has to overcome a presumption of immunity, which means the district court must consider whether prosecuting Trump based on these conversations would impermissibly intrude on executive authority.
Other allegations involve Trump’s interactions with state officials and private parties. Trump tried to persuade state officials that the election results had been tainted by systematic fraud, and his campaign enlisted “alternate” electors that he wanted state legislators to recognize instead of the Biden slates.
Those actions, Trump maintained, were “official” because he was trying to ensure the integrity of a federal election. To the contrary, Special Counsel Jack Smith argued, Trump was trying to undermine the integrity of the election, and he did so in service of his interests as a political candidate, not as part of his presidential duties. According to the Supreme Court, the district court therefore must determine, as an initial matter, “whether Trump’s conduct in this area qualifies as official or unofficial.”
Finally, the indictment cites Trump’s behavior on January 6, 2021, the day his supporters, inspired by his phony grievance, invaded the U.S. Capitol, interrupting the congressional tally of electoral votes. Trump’s conduct that day consisted mainly of his speech at the
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