Is Presidential Immunity in the Constitution?

Question: Could Congress, consistent with the Constitution, enact a statute making it a crime for any person to direct or participate in the use of American military force in the absence of a declaration of war by Congress against the target of that use of force?

Or how about being more direct in targeting the president: Could Congress make it a crime to issue a pardon to a person who has been convicted of conspiring to defraud the United States?

I think the answer to both these questions is no. The Constitution makes the president the commander-in-chief of the armed forces. The Supreme Court has long held, moreover, that a president is not merely authorized but obliged to use whatever force may be necessary to repel an attack, or even a threatened attack, against the United States. Congress may not use its authority to legislate crimes in a manner that encroaches on the president’s authority to direct military operations. And the Constitution vests the president with the pardon power without qualification. This leads to some sticky questions about bribery (an impeachable offense) — i.e., if the president takes a bribe to issue a pardon, may the president be indicted for bribery even if the pardon (probably) may not be invalidated? But bribery aside, Congress may not constitutionally restrict the president’s pardon power by criminalizing its exercise.

I ask these questions because I started out pretty much where Charlie is on the question of presidential immunity — the issue on which we expect a Supreme Court ruling in the coming days. There is no clause in the Constitution expressly granting immunity to the president. And one has to assume that this was not an oversight. The Constitution explicitly grants members of Congress speech and debate immunity (art. I, §6, cl.1). Hence, if the Framers intended to grant the president immunity for official acts, it’s fair to conclude they would have said so unambiguously.

For that reason, ever since former President Trump claimed immunity from criminal prosecution in connection with special counsel Jack Smith’s election-interference indictment against him, I’ve surmised that the Supreme Court would probably reject that claim. Indeed, because the current Supreme Court is philosophically disposed to elevate the text and original understanding of constitutional provisions over adventurous judicial policy-making, I’ve doubted that the current Court would have ruled the same way the Court did over 40 years ago in Nixon v. Fitzgerald (1982), when it held that presidents (including former presidents) have immunity from civil lawsuits arising out of their official executive acts.

To be clear, we are not talking here about whether it is good policy to criminally prosecute or civilly sue a president over official executive acts. I think it’s presumptively bad policy. That is, the Constitution’s preferred manner of dealing with abuses of executive power is not criminal prosecution but congressional action — which can range from oversight hearings and budget slashing on up to impeachment and removal.

But regardless of where one comes out on the policy issue, the specific question in the Trump case is whether the Constitution bars prosecution of the president. On that point, I was struck during the oral argument in the immunity case by an exchange between Justice Gorsuch and Michael Dreeben, who was representing the government. It began this way (Transcript 84-85; emphasis added):

JUSTICE GORSUCH: Did you agree that there are some core functions of the executive that a president conduct that Congress cannot criminalize?

DREEBEN: Yes. We –

JUSTICE GORSUCH: So is – is that a form – I mean, we can call it immunity or you can call it they can’t do it. But what’s the difference?

DREEBEN: We call it an as-applied Article II challenge that we think –

JUSTICE GORSUCH: Okay, okay.

DREEBEN: – fits within –

JUSTICE GORSUCH: Can we call it immunity just for shorthand’s sake so we – so I think we are kind of narrowing the ground of dispute here. It seems to me there is some … area … you concede that on official acts that Congress cannot criminalize. And now we’re just talking about the scope.

The interesting thing about this is that, while it contains no immunity clause, the Constitution does have a structure and an animating separation-of-powers principle that blocks the criminalization of at least some executive actions. Dreeben, of course, doesn’t want to call it “immunity” because, he fears, that would give the game away: If he concedes there is some quantum of immunity, we’re then onto groping for limiting principles regarding its contours.

Gorsuch, however, declines to play this game: If there is executive action that Congress cannot criminalize because doing so would transgress the Constitution, then that is immunity — even if Dreeben would rather avoid the i-word and call it an “as applied Article II challenge” to a penal statute.

Trump’s prosecutors want to narrow the scope of immunity (or, if you prefer, of conduct that is non-prosecutable on separation-of-powers grounds) to a tight core of presidential powers (i.e., Congress cannot use its legislative power to enact criminal laws in a way that attrits Article II executive power).

Yet, as the dialogue with Dreeben continued, Gorsuch went on to show that, once you admit there is an ambit of executive action that Congress cannot legislate away, then it’s tough to corral that — at least as long as the president is undeniably exercising executive power. (By the way, “undeniably exercising executive power” does not mean “acting properly.” A president who pardoned all defendants convicted of distributing cocaine because he doesn’t believe we should criminalize drug trafficking would undeniably be acting within his executive authority, even if his actions were appalling. Ditto a president who, say, ordered a military strike in the absence of an actual threat to the United States.)

I don’t think this is all that different from how the Constitution works in other contexts. For example, there is nothing in the Constitution that explicitly says the president may not forgive student loans or the president may not grant legal benefits to illegal aliens. But we know nonetheless that the president cannot do those things constitutionally because such actions would usurp Congress’s legislative power.

To be clear, I do not believe the Court will or should wholesale adopt Trump’s extravagant view of executive immunity. I also think, furthermore, that Justices Barrett and Kagan elicited important concessions from Trump’s lawyers that some of the illegal behavior charged in the indictment was private conduct — not official acts, and thus not even conceivably covered by some doctrine of presidential immunity. (See, e.g., Transcript 28-30, 36-39.)

But I also think immunity is a hard issue (for reasons I grappled with, for example, here).

Author’s note: I edited this because I inadvertently edited out the word “not” in the original version: “But bribery aside, Congress may not constitutionally restrict the president’s pardon power by criminalizing its exercise.”