The Court was right that some presidential acts can’t be criminalized. But it pushed that principle too far, and its application not far enough.
The Court was right that some presidential acts can’t be criminalized. But it pushed that principle too far, and its application not far enough.
T he Supreme Court’s term ended with a split decision. The Trump v. United States appeal arose from special counsel Jack Smith’s federal criminal prosecution of Donald Trump in D.C. over Trump’s effort to overturn the 2020 election. The case, perhaps predictably, yielded a disunified majority, an ideological split on the Court, a multipart test that is unfinished and challenging to summarize, and a result that will require further litigation. Parts of this opinion are deeply disappointing — but at every turn, they also reflect the Court’s attempt to grapple with a prosecutor abusing the legal system to charge “crimes” never created by Congress in the first place.
While the Court’s approach to presidential immunity was thorough, careful, and respectful of precedent, it left too many unanswered questions and extended a long line of case law with at best a tenuous tie to the constitutional text and excessive reliance on functional balancing — which is the opposite direction from where the Court should be headed.
At the practical level, the Court should have at least offered more guidance to the lower courts on how to divide official acts (which may be immunized) from unofficial acts (which are not). It also set district courts to the unenviable task of trying to decide when a particular criminal prosecution presents “dangers of intrusion on the authority and functions of the Executive Branch.” That’s a question calling for context-bound judgments that will be hard in practice to separate from the political controversies of the hour. The Court itself has been known to get such judgments hilariously wrong, such as when all nine justices thought in Clinton v. Jones that allowing a civil deposition of Bill Clinton would not unduly disrupt his presidency, not foreseeing that the president would lie under oath and trigger a crisis that consumed over a year of American politics.
The bottom line is that the Court, in an opinion by Chief Justice John Roberts joined in full by four of the conservative justices and in most of its analysis by Justice Amy Coney Barrett — over the predictable dissent of all three liberals — rejected most of Donald Trump’s claims of immunity from prosecution but found that presidents do enjoy two different types of immunity from criminal prosecution. Here’s the immediate takeaway:
- First, some core Article II powers of the president simply cannot be criminalized by Congress. The president is absolutely immune from being prosecuted for exercising them, regardless of how his motives are characterized by his enemies. “Once it is determined that the President acted within the scope of his exclusive authority, his discretion in exercising such authority cannot be subject to further judicial examination.” This is the correct rule.
- Second, when the president carries out powers outside of his core and exclusive functions, the president is at least presumed to be immune, and maybe absolutely immune — the Court did not decide which. This tiered framework was openly borrowed by Roberts from Justice Robert Jackson’s influential concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer (1952), which observed that the scope of a president’s national-security powers vary by whether he is acting on his own, with the support of a congressional statute, or against one. In that sense, it’s well-pedigreed analysis. But it’s still on dubious constitutional footing.
- Third, there is no immunity for a president’s unofficial acts. That should leave most of Smith’s indictment standing. But rather than crisply define which parts of the indictment survive and which do not by means of bright-line rules, the Court simply outlined some general principles and sent the case back down for what may prove to be protracted proceedings.
- Fourth, this question must be determined by courts in the way that immunity decisions customarily are: as a defense to trial, which can be immediately appealed. That’s the proper way to do this.
- Fifth, the Court properly and soundly rejected the Trump argument that presidents can’t be prosecuted unless they have first been not only impeached but convicted by the Senate.
Smith’s partisans will doubtless shriek to the heavens at the likelihood that this resolution will likely make it impossible to bring this case to trial before the election. Boo-hoo. Much of this indictment thumbs its nose at binding Supreme Court precedents and should never have been brought. There’s no nonpolitical case for trying this case as a means to influence the election, and the Justice Department could have brought it years ago if there was a law-enforcement purpose served by the case. That said, rather than let Smith be hoist by his own petard, the Court could and should have resolved more of the issues that were fully briefed and required no factual record beyond what is alleged within the four corners of the indictment.
Justice Clarence Thomas wrote separately to argue that the entire prosecution should be dismissed because Smith’s appointment was illegal and he is thus a “private citizen” with no right to prosecute anyone on behalf of the United States. That issue wasn’t properly before the Court, but ruling on it would have done less damage to the rule of law than permitting this rogue prosecution to go forward while asking a district judge to decide without adequate guidance questions such as what is and isn’t an official presidential tweet.
Originalism, Structure, and Function
This was simultaneously an easy case and a hard one.
On the easy side, the dispute was narrower than it may seem. Trump claimed “absolute immunity” from prosecution, but even his own lawyer, John Sauer, conceded at oral argument that much of Smith’s indictment did not derive from Trump’s “official acts” as president, but rather from his conduct in his capacity as a presidential candidate, for which no immunity would be available under any of the various tests that courts have used in the past to find official immunities.
By the same token, as even Smith’s lawyer and the dissenters acknowledged, presidents exercise some powers that Congress (and, presumably, the states) cannot criminalize without crippling the presidency. Example: Let’s say that Joe Biden was prosecuted for pardoning his son Hunter, or that Trump was prosecuted for pardoning close political associates and alleged co-conspirators, on the theory that some criminals are just so close to the president that it is inherently corrupt for a president to pardon them. But the text of Article II creates a pardon power that is nearly absolute. Leaving aside the sale of pardons, which could be prosecuted as bribery, Congress or a state cannot restrict by the criminal laws whom a president may pardon without limiting the pardon power itself.
On the hard side, the Court faced a methodological dilemma. The text of the Constitution provides no immunity from prosecution for presidents or anyone else, aside from Congress. Founding-era sources offer little guidance, much of it contradictory: The best originalist scholarship suggests that the Philadelphia convention and the ratifying conventions finessed the question of presidential immunity because there were real disagreements about it.
Yet there are long-standing precedents entrenching varying kinds of legal immunities for federal executive and judicial officers, some of them stretching back well into the 19th century. In one of those, Nixon v. Fitzgerald (1982), the Court found that presidents are immune from civil-damages lawsuits for their official acts. Nixon v. Fitzgerald is not holy writ: The Court has been busy dismantling ill-considered precedents from the 1970s and 1980s, most recently the Chevron decision, which was decided two years after Nixon v. Fitzgerald. And there’s a good case for revisiting the ever-problematic doctrine of qualified immunity.
But starting on a clean slate would require clear-cutting a lot of prior case law. The government didn’t ask the Court to do that, and traditionally, it doesn’t overrule a bunch of precedents if nobody asks it to do so.
More to the point, when it comes to foundational structural principles such as the separation of powers and federalism, the Court has always considered functional considerations that do not come into play when construing particular government powers or individual rights, whether enumerated or unenumerated. Roberts wrote: “True, there is no ‘Presidential immunity clause’ in the Constitution. But there is no ‘separation of powers clause’ either. . . . Yet that doctrine is undoubtedly carved into the Constitution’s text by its three articles separating powers and vesting the Executive power solely in the President.” The Court does have some authority, long exercised, to prevent the explicit powers granted by the Constitution to each branch — as well as the powers explicitly reserved to the states — from being rendered a dead letter in practice. Article II vests “the executive Power” in a single individual, and the Constitution must not be read to make that power impossible for a single individual to exercise.
What’s a principled originalist to do? Not stick solely to the literal text — but remember always that only the literal text has the democratic legitimacy of ratification by the people, so the further one strays from it, the more likely it is that one is inventing law rather than interpreting it. Reading text so that it carries out its originally intended functions as originally understood is legitimate; but that role for the judiciary is a limited one. Here, the Court went too far.
Core Functions and Immediate Appeals
The Court got the first half of its test right: There are presidential powers whose exercise can’t be criminalized because that would amount to stripping the presidency of powers that the Constitution gave to his office and not to Congress. One of those is the power to decide when and how to investigate crimes, which is charged in this indictment as an improper direction by Trump to the acting attorney general. That can be an impeachable abuse of office; but to charge it as a crime puts Congress and the courts in the business of second-guessing a decision that belongs to the president alone. Similarly, presidents can fire or threaten to fire anybody within their appointment powers in the executive branch, and that can’t be restricted by a criminal law. Analytically, the problem isn’t with prosecuting the president but with criminalizing his conduct in the first place.
As a practical matter, the Court was also correct that, because this is a separation-of-powers question and not merely a matter of an individual criminal defendant’s rights, it should be decided before trial and immediately appealable.
Barrett argued:
I would . . . assess the validity of criminal charges predicated on most official acts—i.e., those falling outside of the President’s core executive power—in two steps. The first question is whether the relevant criminal statute reaches the President’s official conduct. Not every broadly worded statute does. If the statute covers the alleged official conduct, the prosecution may proceed only if applying it in the circumstances poses no “danger of intrusion on the authority and functions of the Executive Branch.”
In discussing that first step, Barrett, in my view, gave too short shrift to how carefully courts should read federal statutes on this point: She argued that, rather than requiring a “clear statement” that a statute covers the president, “Courts should instead determine the statute’s ordinary meaning and, if it covers the alleged official acts, assess whether prosecution would intrude on the President’s constitutional authority.”
Ordinary meaning is how things should ordinarily work, as the Court’s rejection of Chevron observed. But in reading “ordinary meaning,” the specific context of presidential power must be considered in asking whether a statute should be read to cover the president. For example, the “conspiracy to defraud the United States” statute (charged in this indictment) was designed to prevent evasion of the tax-collecting power, and its multifarious applications have almost always entailed thwarting of the duties of the executive branch. A law with that evident focus should not be presumed to cover the head of the executive branch — who has vast discretion over how the executive branch carries out those duties — unless it is quite explicit that it does so, and how. As the majority explained:
Section 371—which has been charged in this case—is a broadly worded criminal statute that can cover any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government. . . . Virtually every President is criticized for insufficiently enforcing some aspect of federal law (such as drug, gun, immigration, or environmental laws). An enterprising prosecutor in a new administration may assert that a previous President violated that broad statute. Without immunity, such types of prosecutions of ex-Presidents could quickly become routine. The enfeebling of the Presidency and our Government that would result from such a cycle of factional strife is exactly what the Framers intended to avoid. [Quotations and citations omitted]
Construing such as statute not to cover the president acting within the scope of his official powers — when its language makes no effort to address how it would apply to him — would dispense with the need to decide whether he’s “immune” in some constitutional sense.
Outside the Core
Where the Court’s decision strays outside the rules that are strictly necessary to preventing the prosecution of the presidency itself is in the hazy second tier of immunity. For example, regarding Trump’s pressure on Mike Pence to spike some of Biden’s electors, Roberts wrote:
Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. . . . The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.
The question then becomes whether that presumption of immunity is rebutted under the circumstances. When the Vice President presides over the January 6 certification proceeding, he does so in his capacity as President of the Senate. . . . Despite the Vice President’s expansive role of advising and assisting the President within the Executive Branch, the Vice President’s Article I responsibility of presiding over the Senate is not an executive branch function. [Quotations and citations omitted]
Of course, we yet again here encounter the way in which an unnecessary constitutional crisis is provoked not only by Trump’s pressuring Pence to violate his oath of office, but also by Smith’s stretching the law beyond its recognizable bounds. The Court was correct that Pence was acting in his official capacity. But the majority could just as easily have found that Trump was simply acting as a candidate, the same as if this conversation happened in 2017 and it was then-VP Joe Biden he was trying to talk into tossing some electors. Here’s the problem, though: If Trump had done that in 2017, it would be a citizen petitioning the government, protected by the First Amendment. There’s no law against trying to talk politicians into breaking the law, or at least half the press and activist class would be in jail. Smith was only able to charge Trump’s conversations with Pence as crimes by dressing them up in official-act trappings.
So, again, Smith made this mess. But here’s how the Court tried to cut that Gordian knot:
It is ultimately the Government’s burden to rebut the presumption of immunity. We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.
Where on earth does the Constitution empower a district judge to make that decision, and what factors are supposed to be considered in striking that balance? The Court didn’t say. Those are political questions. The courts can resolve political questions of this nature when the Constitution itself provides a rule for deciding them. But here, it doesn’t.
The same goes when the Court is asked to decide whether Trump is immune from prosecution for giving public speeches or lobbying state legislatures. It would be much easier to decide whether these “crimes” infringe on the president’s official powers if we had some concrete sense, based in written law, what the crime is. How and when did Congress criminalize these acts? An honest answer would be that it didn’t. But, condemned to the make-believe world of Smith’s charges, the Court threw up its hands even at Trump’s claiming that it’s an official presidential act to call the chair of his political party:
Unlike Trump’s alleged interactions with the Justice Department, this alleged conduct cannot be neatly categorized as falling within a particular Presidential function. The necessary analysis is instead fact specific, requiring assessment of numerous alleged interactions with a wide variety of state officials and private persons. . . . The concerns we noted at the outset—the expedition of this case, the lack of factual analysis by the lower courts, and the absence of pertinent briefing by the parties—thus become more prominent. We accordingly remand to the District Court to determine in the first instance—with the benefit of briefing we lack—whether Trump’s conduct in this area qualifies as official or unofficial.
Contrary to what the Court said at the outset of its opinion, it’s simply not so that “because [the lower] courts categorically rejected any form of Presidential immunity, they did not analyze the conduct alleged in the indictment to decide which of it should be categorized as official and which unofficial.” The D.C. Circuit put a lot of effort into parsing Smith’s allegations to conclude that they mainly involved Trump acting in his capacity as a candidate for office, not as president. The indictment runs 45 pages — just two pages longer than the majority opinion. It would not be that hard to draw bright lines after reading it.
With regard to Smith indicting Trump for giving public speeches and sending tweets — again, things we would normally associate with political speech protected by the First Amendment that violates no law actually passed by Congress — the Court told the district court to go outside the four corners of the indictment to consider the full context of political speech:
The indictment . . . includes only select Tweets and brief snippets of the speech Trump delivered on the morning of January 6, omitting its full text or context. . . . Whether the Tweets, that speech, and Trump’s other communications on January 6 involve official conduct may depend on the content and context of each. Knowing, for instance, what else was said contemporaneous to the excerpted communications, or who was involved in transmitting the electronic communications and in organizing the rally, could be relevant to the classification of each communication. This necessarily factbound analysis is best performed initially by the District Court.
Now, it’s true that in civil- and criminal-immunity decisions in varying contexts, courts are traditionally permitted to take evidence, and are not tied solely to the allegations. But what context would be relevant here? Again, the Court’s analysis does less to clarify the issue than to reiterate the lawless insanity of indicting presidents for giving public speeches in the first place on the theory that public speaking amounts to a conspiracy with the audience:
The President oversees—and thus will frequently speak publicly about—a vast array of activities that touch on nearly every aspect of American life. Indeed, a long-recognized aspect of Presidential power is using the office’s “bully pulpit” to persuade Americans, including by speaking forcefully or critically, in ways that the President believes would advance the public interest. He is even expected to comment on those matters of public concern that may not directly implicate the activities of the Federal Government—for instance, to comfort the Nation in the wake of an emergency or tragedy. For these reasons, most of a President’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities.
There may, however, be contexts in which the President, notwithstanding the prominence of his position, speaks in an unofficial capacity—perhaps as a candidate for office or party leader.
Smith’s Rules of Evidence
Another of Smith’s skeevy moves was to insist to the Court that if it threw out parts of the indictment on immunity grounds, he would still be entitled to keep them in the case as evidence. The Court rejected that, with Barrett joining the dissent in protest.
The Court’s argument was functional: “If official conduct for which the President is immune may be scrutinized to help secure his conviction, even on charges that purport to be based only on his unofficial conduct, the intended effect of immunity would be defeated.” Barrett rejoined that sometimes, it’s necessary: If a president is charged with taking bribes for an official act, “excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution. To make sense of charges alleging a quid pro quo, the jury must be allowed to hear about both the quid and the quo, even if the quo, standing alone, could not be a basis for the President’s criminal liability.” The Court replied that the act could be introduced as evidence, it just couldn’t be examined and probed in private detail.
Once again, the problem starts with Smith, who wants to use official acts not merely as proof that official acts were taken, but as part of a criminal conspiracy. In which case, uncharged conduct is no different than charged conduct. In Alvin Bragg’s case, for example, a major element of the evidence against Trump was a conspiracy never charged or even mentioned in the indictment. But the problem here is not one of immunity; it’s of abuse of the law by the prosecutor.
* * *
Given the momentous issues it raises, the Court was right to take this case. It was right to find that presidents cannot be prosecuted for exercising presidential powers that Congress may not criminalize in the first instance (and neither could any state). Moreover, worries that the Court is placing presidents “above the law” would not ring so false if this indictment actually charged any offense recognizable as a crime. Live by indicting political speech, die by indicting political speech.
But the Court did only half of its job right. It should have resolved which acts charged in this indictment are official, and which are not. It should not have created a standardless balancing test for “intrusion” into presidential power. It should instead have defined which powers cannot be criminalized and demanded that the indictment be tested more rigorously for charging things that Congress never prohibited. Had it taken that last step, it might have put this entire prosecution out of its misery.