Welcome again to The Collision. We’re back early this week because we finally got a decision from the Supreme Court on presidential immunity. Sort of. We’ll explain it all down below, then we’ll be taking the rest of the week off for the holiday. Meanwhile, we’ll take a page from the Supreme Court finishing up its term and consider the Docket for this week cleared.
The Supreme Court Establishes Some Immunity Guidelines
Yes, we have a decision from the Supreme Court about whether a president is immune from criminal prosecution for acts committed during his presidency. The answer is yes, no, and maybe. And most of the substantive questions about whether the Department of Justice can continue its prosecution of Donald Trump have been sent back down to the federal district court in Washington, D.C.
Here was the punchline: A six-justice majority of the Supreme Court, all appointed by Republican presidents, held that “immunity extends to official discussions between the President and his Attorney General” and they sent back “to the lower courts to determine in the first instance whether and to what extent Trump’s remaining alleged conduct is entitled to immunity.”
As Chief Justice John Roberts put it in his majority opinion, the case itself did not require the court to determine the full scope of presidential immunity.
“Because we need not decide that question today, we do not decide it. ‘[O]ne case’ in more than ‘two centuries does not afford enough experience’ to definitively and comprehensively determine the President’s scope of immunity from criminal prosecution,” he wrote.
That’s not to say Monday’s decision is without consequences. Practically speaking, this will further delay the start of Trump’s trial in Washington, almost certainly until after the November election. The Supreme Court’s decision has struck some specific elements of the indictment, most notably Trump’s direction to Justice Department officials (specifically acting Assistant Attorney General Jeffrey Clark) to investigate voter fraud after the 2020 election. And the decision rejects Trump’s assertion that he has absolute immunity from all criminal prosecution because of his acquittal during his second impeachment trial following the January 6, 2021, Capitol riot.
“Trump asserts a far broader immunity than the limited one we have recognized,” reads Roberts’ opinion.
What the 6-3 majority opinion does do, however, is send the lower court and the federal prosecutors under special counsel Jack Smith back to work. Presidents are immune sometimes, but not all the time, and Judge Tanya Chutkan of the D.C. district court has to determine whether certain actions Trump took are prosecutable. To help, the Supreme Court sets out some classification rules and guidelines for how to think about presidential immunity.
- Absolute immunity for core powers
First, a president does have absolute immunity from prosecution for actions taken in “exercise of his core constitutional powers.” In other words, if it’s a power granted to the president in Article II of the Constitution, the president cannot be prosecuted for it. The court cites past precedent for this, including an attempt by Congress to limit the pardoning power.
In 1863, President Abraham Lincoln granted a pardon and restoration of property to some former Confederates who had taken an oath of allegiance to the United States. In 1870, Congress passed a law to prohibit a president from restoring property rights as part of his pardoning power. In United States v. Klein, the Supreme Court ruled in 1872 that this law infringed upon the president’s exercise of his constitutional powers, several of which the court has deemed “conclusive and preclusive.”
This is relevant because one of the charges against Trump concerns his threats to replace his acting attorney general if he did not further investigate Trump’s claims of election fraud. The court held that, like the pardon power, replacing certain members of his administration is a core presidential power. “The President’s power to remove executive officers of the United States whom he has appointed may not be regulated by Congress or reviewed by the courts,” Monday’s opinion says.
As such, the justices held that Trump is totally immune from prosecution “for the alleged conduct involving his discussions with Justice Department officials.”
But for Trump, this is the high-water mark of the opinion for his side.
- Presumptive immunity for official acts
If an act does not implicate a core presidential power but is nevertheless an official act of the president, the court held that a former president is entitled to the presumption that he is immune from prosecution for that official act.
“Such an immunity is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution,” the chief justice wrote.
But that presumptive immunity can be overcome if “the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’”
Translation: A president must be able to exercise the duties and responsibilities the Constitution gives him without fear of being criminally charged later. So when conducting official acts, the president is immune from prosecution unless the government can prove prosecuting him would not endanger the ability of the executive branch to function in the future.
That’s bad news for Trump. He may start out with a presumption of immunity, but the chief justice and Justice Amy Coney Barrett, in her concurrence, lay out the prosecutors’ case for overcoming that presumption.
“For example, the indictment alleges that the President asked the Arizona House Speaker to call the legislature into session to hold a hearing about election fraud claims,” wrote Barrett. “The President has no authority over state legislatures or their leadership, so it is hard to see how prosecuting him for crimes committed when dealing with the Arizona House Speaker would unconstitutionally intrude on executive power.”
Roberts’ majority opinion actually bolstered the charge against Trump related to his pressure on Vice President Mike Pence not to certify the election results on January 6, 2021. “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,” he wrote. “So the Government may argue that consideration of the President’s communications with the Vice President concerning the certification proceeding does not pose dangers of intrusion on the authority and functions of the Executive Branch.”
Herein lies the rub on this whole “presumption of immunity” thing for Trump. In order to be granted immunity for all charges against him in this case, he not only has to prove that all his actions were official—something his own counsel conceded was not the case during oral arguments—but also that prosecuting him for those specific actions would undermine the ability of future presidents to do their jobs.
All these questions go back to Judge Chutkan to decide.
- No immunity for unofficial acts
What’s left to consider are unofficial actions taken by a sitting president but conducted in his personal capacity. The purpose of presidential immunity is not to shield the president as an individual from the law, but to protect that individual’s ability to execute the duties of the office. The Supreme Court’s majority opinion was clear from the get-go: “As for a President’s unofficial acts, there is no immunity.”
But what’s the line between official and unofficial? The courts have done very little in the past or in this specific case to establish what’s considered an unofficial act, so the lines are often blurred. Did Trump make his speech at the Stop the Steal rally on the mall on January 6 as president or as a candidate? It’s hard to say.
“Most of a President’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities,” the majority opinion held, but there are times “in which the President, notwithstanding the prominence of his position, speaks in an unofficial capacity—perhaps as a candidate for office or party leader.” And how is a judge supposed to tell the difference? By using an “objective analysis of ‘content, form, and context.’” Good luck with that, Judge Chutkan.
Is the President Now Above the Law?
There is no question that the Supreme Court’s opinion will make it more difficult to prosecute both Donald Trump and future presidents. But the question will be how strong this new presumption of immunity is and where the courts draw the line on the “outer perimeter” of a president’s official acts.
As Roberts wrote:
Like everyone else, the President is subject to prosecution in his unofficial capacity. But unlike anyone else, the President is a branch of government, and the Constitution vests in him sweeping powers and duties. Accounting for that reality—and ensuring that the President may exercise those powers forcefully, as the Framers anticipated he would—does not place him above the law; it preserves the basic structure of the Constitution from which that law derives.
What about that whole Seal Team 6 assassination idea?
As Justice Sonia Sotomayor wrote in her dissent joined by Justices Elena Kagan and Ketanji Brown Jackson:
The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.
And she’s not wrong. That indeed is the logical outgrowth of the majority’s reasoning. But Roberts dismissed the dissent as “fear mongering on the basis of extreme hypotheticals.” He wrote:
The dissents overlook the more likely prospect of an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next. … 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. Ignoring those risks, the dissents are instead content to leave the preservation of our system of separated powers up to the good faith of prosecutors.
The dissenting justices were not persuaded. “Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends,” Justice Sotomayor wrote. “Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be.”
In the end, perhaps this is the real debate. Which prospect is scarier: an unaccountable president breaking the law with impunity or former presidents routinely being convicted of failing to secure the border or protect the environment after leaving office? What types of people would run for president if they thought they’d likely be prosecuted upon leaving? Then again, we have no history of that kind of abuse, and yet the most recent president did in fact try to stay in power after losing a free and fair election.
Under this court’s decision, the criminal justice system will not serve as the backstop to a president’s unlawful acts. Instead, that backstop may be Congress, which can impeach a president, remove him from office, and prevent him from holding future office. But, more importantly, that backstop should be the people of the United States, who can refuse to vote for such a candidate in the first place.
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