While the result of the Court’s decision may be to preserve Trump’s freedom from jail, its greater consequence is to protect the liberty of us all.
While the result of the Court’s decision may be to preserve Trump’s freedom from jail, its greater consequence is to protect the liberty of us all.
P resident Joseph Biden’s attack this week on the Supreme Court got at least one thing right. Trump v. United States’ finding of presidential immunity will have profound effects, both short- and long-term, on our constitutional order. Combined with last week’s Fischer v. United States, which threw out the main obstruction charge against the January 6 rioters, Trump tears the heart out of the special-counsel prosecution of the former president for his conduct on that sorry day.
But Trump will have consequences that will extend far beyond correcting special counsel Jack Smith’s excesses and punishing his incompetence. It should end Democrats’ misguided efforts to use the criminal-justice system to achieve a partisan end — the elimination of Trump as a viable candidate. It should protect the very characteristics of the presidency that make it executive in nature, which will enhance the separation of powers and the national security. And it will force the other branches of government and, ultimately, the electorate to take up their responsibility to check abuses of executive power. Viewed from this broader perspective, Trump’s outcome was almost foreordained, as it falls within the broader effort of the Roberts Court to protect executive prerogatives while calling on Congress and the people to perform their constitutional responsibilities as well. Unfortunately, it took more than a year, after the Department of Justice crossed the Rubicon of prosecuting a former president and leading opposition candidate, for Biden to finally understand that the American people — and not prosecutors — must judge Trump for his involvement on January 6.
The Legal Issue
The core issue in Trump v. United States was whether former president Trump could be criminally prosecuted for his actions to overturn the results of the November 2020 election. Trump argued that, as then-president, he was “absolutely” immune or exempt from prosecution for any “official” acts he performed while in office. Special counsel Jack Smith denied that a former president enjoyed any immunity at all, even for “official” acts, and maintained that the president was subject, as a private citizen would be, to the criminal law.
The question was unusually difficult. First, while the Court had previously dealt with questions of presidential immunity from civil actions and from the compulsory production of evidence in a criminal investigation, there were no precedents dealing squarely with presidential immunity from criminal prosecution. The Court was deciding in a near-vacuum of precedent.
Second, in operational terms, the outcome of the case would make an enormous difference to the conduct of future presidents. On the one side, the majority argued that denying the president any immunity would prevent him from executing his duties “fearlessly and fairly.” “A President inclined to take one course of action based on the public interest,” Chief Justice Roberts argued, “may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office.” On the other side, the dissenters argued that even a less-than-absolute immunity would undermine the public interest in presidential accountability, endanger the rule of law, and place the country at the risk of a president who might (in Justice Sotomayor’s examples) order the Navy SEALs to assassinate a political rival, organize a coup to remain in power, or take a bribe in exchange for a pardon.
Whether or not these examples were implausible, presidential history presents many cases that illustrate the tensions. Would we want a president to be at risk of criminal prosecution if he, like President Obama, ordered the launching of drones that targeted and killed an American citizen enlisted in the terrorist organization? On the other hand, if (as President Nixon’s White House did with Daniel Ellsberg’s psychiatrist) a president ordered his agents to break into a whistleblower’s doctor’s office and rifle through his files, would we want the president to go unpunished?
Third, the majority and dissents differed markedly over the appropriate interpretative method. The majority pursued (as the Court has in other separation-of-powers cases), a functionalist approach. It looked to whether denying immunity would impair the president’s ability to perform the duties and exercise the powers of his office.
The dissenters, by contrast, emphasized textualist and originalist concerns. Justice Sotomayor correctly noted that nothing in the constitutional text expressly provides for presidential immunity — unlike congressional immunity, which is set forth in the speech and debate clause. Further, she observed that some state constitutions in the Founding period had explicitly stipulated for the immunity of governors. Sotomayor also pointed out that the Constitution’s impeachment judgment clause presumes that a criminal prosecution is available “as a backstop” for the same misconduct that had resulted in an adverse impeachment judgment. She quoted Alexander Hamilton in support of the claim that a president (unlike the king of England) “would be amenable to personal punishment and disgrace” for his crimes.
Nevertheless, a functionalist approach to the presidency and the Constitution won the day. The Court obviously sought to steer a middle course between Trump’s theory of absolute immunity and the prosecution’s theory of full liability. It developed a scheme that Justice Jackson described as “something of a hybrid.” The scheme was based on a fundamental distinction between “official” and “unofficial” (or private) presidential acts. “Official” acts themselves fell into two categories: those that fall within the scope of the president’s “core” constitutional authorities, such as the pardon power, and those based on other authority, including (but not limited to) statutory grants. Acts of the former kind are “absolutely” immune for prosecution; acts of the latter kind are “presumptively” immune. Unofficial or private acts enjoy no immunity at all.
The Court did not attempt to provide a definitive account of the “official/unofficial” distinction and acknowledged that making that distinction could be “difficult” for the lower courts. It did, however, say that actions could be categorized as “official” even if they were not “obviously connected to a particular constitutional or statutory provision” — for example, “speaking to and on behalf of the American people.” Thus, presidential messages sent out on Twitter/X could count as “official,” just as much as State of the Union speeches are. And many other discretionary presidential actions lie within what the Court called “the outer perimeter of his official responsibility.” The potential scope of “presumptive” immunity for official acts could therefore be extremely broad.
On remand, Smith will no doubt attempt to argue that most of Trump’s conduct falls on the unofficial side of the line. But the Court suggested that Trump’s discussions with the Justice Department to investigate election fraud were official and that even his efforts to persuade Vice President Mike Pence to reject electoral votes might be entitled to immunity. If Judge Chutkan fairly and thoroughly applies Trump’s new official/unofficial line to the indictment, it is difficult to see how the January 6 trial can take place before the November elections. While Biden blamed the Supreme Court for the delay, the real culprit is his misuse of the Justice Department.
The Political Fallout
This was all too much for President Biden. He called Trump v. United States a “terrible disservice” to the country because it made it unlikely that the special counsel could complete a trial before the November election. Biden predicted that this “certainly means that there are virtually no limits on what a president can do.” Without the courts to hear the prosecutions, he concluded, “the American people must decide whether Donald Trump’s assault on our democracy on Jan. 6 makes him unfit for public office in the highest office in the land. The American people must decide if Trump’s embrace of violence, to preserve his power, is acceptable.”
Biden is only dimly coming face-to-face with the consequences of his mistakes. Crossing the constitutional Rubicon of using the criminal-justice system to attack a former president and the leading opposition candidate for the office not only wasted a year of the nation’s life, it also forced the Supreme Court to intervene to shut down his abuse of his prosecutorial powers.
Trump reflects the Court’s rejection of lawfare, starting most immediately with special counsel Jack Smith. Earlier last week, the Court in Fischer v. United States eviscerated the main tool in the Biden Justice Department’s prosecution of the January 6 rioters: the 2002 Sarbanes-Oxley (SOX) law’s prohibition on tampering with documents needed for an official investigation. Even though the January 6 rioters had nothing to do with this kind of evidence or proceeding, the DOJ misread SOX to allow it to punish anyone who interfered with the congressional meeting to count the 2020 electoral votes. Now that the Court has held this law not to apply to January 6, the remaining charges against Trump for fraud and depriving Americans of their voting rights should fail. The Court has already held that federal fraud involves only efforts to acquire money or property, not the pursuit of political interests. Regardless of how one views Trump’s conduct on January 6, it does not involve financial gain. And Smith’s notion that Trump’s effort to change the electoral-vote count somehow deprived all Americans simultaneously of their voting rights is so overbroad that he is inviting yet another embarrassing defeat at the Supreme Court.
Add the Court’s immunity decision to these weaknesses, and you have a vote of no confidence in President Biden and Attorney General Garland. The justices’ disdain for Smith himself was so open and notorious that Justice Clarence Thomas even called on judges to examine whether the special counsel’s appointment violated federal employment law and the Constitution. Smith has led an investigation that appears to have produced no new facts, and charged Trump with such tenuous readings of federal criminal law, that the Supreme Court has quickly and easily doomed the case on legal grounds without a single fact yet presented to a jury.
The Longer-Term Constitutional Consequences
A larger consequence of the Trump case involves its impact on the executive power. The Court majority saw as its grander purpose the protection of the office of the presidency from a Congress and a partisan successor who would use the law to undermine the institution. The Founders included a president in the Constitution not just to execute the laws (the ground on which the lower courts had held Trump had no immunity), but also to respond to emergencies, crises, and war. In contrast to Congress, the president’s powers are left undefined. Article II of the Constitution vests “the executive power” in him because the written law cannot foresee every future circumstance that might require action on behalf of the nation. Therefore, the Framers invested the president with “energy” and expected a single man, rather than a committee, to act with decision, swiftness, and sometimes even secrecy, to protect the national security and ensure domestic tranquility.
As the Roberts Court recognized, binding down the president with Congress’s written laws would allow the legislature to intrude upon the proper scope of the executive’s authority. But it would do much worse. Prosecution could deprive presidents of the very essence of what it is to be an executive: the unity, energy, and independence needed to take immediate action. The energetic executive does not just accrue to the president’s benefit. As the Court and political theorists have long recognized, the separation of powers creates independent branches of government to protect liberty. By preventing any one branch from becoming all-powerful, each of the three can keep a constant watch on the others to prevent them from intruding on individual freedom.
Justice Sotomayor has received much attention for the closing line of her opinion: “With fear for our democracy, I dissent.” Of course, the Constitution does not create a democracy, but a republic. Part of our republican design is to prevent the operation of a simple democracy where 50.1 percent of the population can set all policy, for everyone, all at once. Our Founders created a president, Congress, and Supreme Court to prevent a democracy from quickly controlling the government and imposing its will on the nation. Instead, as Trump reminds us, the separation of powers protects individual liberty by creating a presidency that must have independence from Congress in order to act swiftly, decisively, and with energy against threats to the nation’s security and at times against the will of the other branches. While the result of the Supreme Court’s decision may be to preserve Trump’s freedom from jail, its greater consequence is to protect the liberty of us all.
Robert Delahunty is a Washington Fellow of the Claremont Center for the American Way of Life. John Yoo is a distinguished visiting professor in the School of Civic Leadership at the University of Texas at Austin, a law professor at the University of California at Berkeley, and a nonresident senior fellow at the American Enterprise Institute. They are the authors of The Politically Incorrect Guide to the Supreme Court.