In Trump v. United States, the Supreme Court faced a question of first impression about the scope of a former president’s immunity, if any, from criminal prosecution for conduct alleged to involve official acts. By a 6–3 vote, the majority crafted a sensible rule, balancing the commonsense notion that presidents are subject to liability for private actions with the constitutionally inescapable position that presidents must be able to exercise Article II power without fear of criminal liability or even probes into their motivations.
In the majority opinion, authored by Chief Justice John Roberts, the Court noted the threat to a president’s ability to do his job boldly if he were immediately faced with a bevy of lawsuits upon leaving office—something that until recently was almost unheard-of but may be part of the new normal in our current environment of lawfare and polarization. By the Court’s holding, that translated into absolute immunity “[a]t least with respect to the President’s exercise of his core constitutional powers . . . . As for his remaining official actions, he is also entitled to immunity,” but the Court did not decide whether that immunity would be absolute or presumptive. Presumptive immunity would entail immunity from criminal prosecution unless the government could show that the prosecution would not pose any “dangers of intrusion on the authority and functions of the Executive Branch.”
Going forward, courts determining whether an action is covered by immunity will begin by assessing the president’s authority to take that action under the Constitution. And “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.”
The Court did not confer immunity for allegations involving Trump’s private, non-official acts, and neither side disputed that unofficial acts committed while in office can be subject to criminal prosecution. Both sides agreed that some of the acts alleged were private, but they disagreed on which ones should be so classified.
The Court’s decision did not undertake anything like a comprehensive categorization of the allegations that arose in the underlying prosecution. Allegations involving President Trump’s discussions with senior Justice Department officials regarding the 2020 election received absolute immunity from prosecution because “[i]nvestigative and prosecutorial decisionmaking is the special province of the Executive Branch, and the Constitution vests the entirety of the executive power in the President” (citations and internal quotation marks omitted). But the district court will assess on remand whether and to what extent the rest of the alleged conduct in the indictment is entitled to immunity. Allegations stemming from Trump’s conversations with Vice-President Pence (who acted as both a presidential advisor and as president of the Senate) about the January 6 certification proceeding implicated presumptive immunity, leaving the burden on the government to demonstrate in district court that the prosecution will not endanger executive branch authority and functions. Still other allegations involving interactions with state officials, private parties, and the general public, were remanded for determination on whether the former president’s conduct qualifies as official or unofficial. During oral argument, Justice Amy Coney Barrett seemed to elicit a concession from Trump’s attorney that allegations about the president’s dealings with private attorneys and a political consultant in connection with the 2020 election were private, but the Court’s decision did not venture that far with its conclusions. Also remanded were the “necessarily factbound” and potentially “challenging” questions of how to characterize Trump’s relevant tweets and January 6 speech to gathered supporters. None of that stopped the dissent, written by Justice Sonia Sotomayor, from glossing over what the Court actually did. The dissent drew the unwarranted conclusions that “the category of Presidential action that can be deemed ‘unofficial’” would be “vanishingly small” and that “[i]n every use of official power, the President is now a king above the law.”
Monday’s decision makes clear that courts “may not inquire into the President’s motives” when distinguishing official from unofficial conduct. Such a “highly intrusive” inquiry “would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II interests that immunity seeks to protect.”
Plenty of critics have objected to the timeline of this litigation, which, regardless of how the Court decided this case, rendered it highly unlikely that Trump would be convicted of any charges before election day. For that we can thank the Justice Department and Jack Smith. They could have brought his prosecution much earlier.
The Court’s decision may undercut Biden’s attempt to use government prosecutors to attack his political rival, but in the long term it will benefit him, as it does Trump, by shielding him from liability for his own actions in office.