Quinta Juecic and Benjamin Wittes writing for Lawfare: The United States has gone for two-and-a-half centuries
without a constitutional rule concerning presidential immunity, and it has been
able to do so for a very simple reason: Most presidents aren’t criminals and
don’t use their official functions to commit crimes.
The question of whether a president has some form—and if so,
what form—of immunity for official acts thus hasn’t come up much. Where presidents
have broken the law, the country has resolved the matters by means other than
criminal charges. We saw a pardon in the case of Richard Nixon, and we saw a
negotiated resolution short of prosecution in the case of Bill Clinton. In some
cases, we just looked the other way. And the country and its presidency moved
on.
Had it come outside the context of the once and possibly
future presidency of Donald J. Trump, the Supreme Court’s decision Monday
in Trump
v. United States would still have been wrong, and it would still have
been objectionable, and it would still have been dangerous.
But it would have been dangerous primarily in a hypothetical
kind of way. It would have made it more likely that some future president might theoretically
take this doctrinal tiger and ride it into a life of official crime without
fear of repercussions. It would have made it more likely that some
president might find in the Supreme Court’s ruling a license to
corruption or a license to wield enhanced substantive power, because no law—or
chains—could bind him or her.
But these dangers, though real, would have been somewhere
off in the future. They might never come to be. And the United States, after
all, has lots of constitutional law that, exploited by bad people, could
theoretically produce bad outcomes.
The Supreme Court’s decision, however, does not come
decontextualized in a casebook. And it is not, however much the justices of the
majority may pretend otherwise, about the presidency in the abstract. Of
course, it also affects the presidency in the abstract—and all future
presidents who wield its powers. But this is a case about a particular man in
interaction with the presidency. And those actions are not all in the past
tense.
It is a case in which the Supreme Court was asked whether it
wanted to enable Trump’s avowed authoritarianism in a future presidency by
disabling his prosecution for crimes committed in his prior presidency.
It is, in other words, about some very immediate—and very non-hypothetical—dangers.
And it comes at a very specific political moment: Trump
is currently
leading in most polls. According to Nate Silver’s forecast, Trump has
a 71
percent chance of winning the election in November. That chance is
only 51 percent if you prefer the
538 forecast. But he’s the current front-runner by any reasonable measure.
His opponent’s campaign is in no small turmoil following Joe Biden’s disastrous
performance in last week’s debate. Trump is, in short, the single most likely
person in the world to wield the powers of the American presidency come Jan.
20, 2025.
He is also a convicted criminal—no small matter when one is
writing a “rule
for the ages” about prospective presidential impunity, as Justice Neil
Gorsuch put it during oral arguments. The court majority may flatter itself
that it’s staying out of politics. But this is a fairy tale the justices are
telling themselves—if they are, in fact, telling themselves this pleasant
little tale. In fact, they are handing a powerful immunity to an adjudged felon
who may be about to assume “the executive power” of the United States, and they
are doing it by corroding—and perhaps rendering impossible—accountability for
his past crimes.
There’s another sense in which the Supreme Court has failed
here: It has articulated a set of standards for presidential immunity that are
utterly opaque. The most fundamental job of an appellate court, even when it’s
articulating an objectionable principle, is to give actionable guidance to
lower courts. The Court in this case has not done this. Reading the opinion
alongside the indictment, it is completely unclear how to apply it to the
instant case along a number of different axes and with respect to a number of
different allegations.
This task the majority remands to the district court—with
Trump careening toward the presidency—and it does so reserving for itself
another round of interlocutory appeal before the matter can proceed to trial.
The
Error! The Error!
The notion that there is some form of presidential immunity
for some official acts—or at least some constitutional limit on Congress’s
authority to criminalize the conduct of presidential acts—is not horrible in
and of itself. Whether one calls this a limitation on Congress’s legislative
authority or calls it a presidential “immunity” is a largely semantic
distinction, though it’s a semantic distinction with an important procedural
consequence. If we think of this protection for presidential action as merely a
constitutional limitation on congressional power, it doesn’t convey an interlocutory
appeal to a former president charged with a crime, whereas if we call it an
immunity, these issues have to be resolved pretrial.
Had the Court merely contended that there is some
irreducible core of presidential conduct that Congress cannot regulate, this
likely would have been an uncontroversial decision, perhaps garnering unanimity
as even the dissenters seem to concede it. Moreover, it would not either have
gravely encumbered the prosecution or handed Trump a loaded weapon should he
return to office.
But the Court went a lot further.
It held that with respect to all other official
presidential acts, there is at least a presumption of immunity and there may be
absolute immunity as well. The Court isn’t telling just yet which it is, writes
Chief Justice John Roberts: “[W]e need not and do not decide whether that
immunity must be absolute, or instead whether a presumptive immunity is
sufficient.”
This immunity may, or may not, be overcomable by the
prosecution to the extent it 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.’”
With respect to unofficial conduct, the former president has
no immunity, but the Court offers Trump an Easter egg here as well: “In
dividing official from unofficial conduct,” Roberts writes, “courts may
not inquire into the President’s motives. Such an 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.”
As an example of the absurdity of this proposition, imagine
a hypothetical only one shade from something that actually happened. Imagine
that Trump as president had offered Ukrainian President Volodymyr Zelensky a
frank bribe, instead of using the word-salad he gave in his “perfect” phone
call with the Ukrainian leader. Imagine for example that he had said, “I will
give you $10 billion in military aid if you deliver me dirt on Joe Biden.” Such
an offer would be a crime if it were a corrupt offer meant to dig dirt on a
rival; but if the president were earnestly concerned about, say, protecting
national security and believed that “the dirt” referred to something genuinely
sinister, this might be a defensible exercise of the president’s Take Care
Clause responsibilities. The difference is purely one of intent and motive.
Yet under this ruling, Trump would likely be immune whether
he did this for the most venal of personal reasons or the most noble,
good-faith reasons of state. A court could not even consider the motive in
assessing whether immunity attaches to the act.
The Court went further still. Not only is the former
president absolutely or presumptively immune for all official acts in the sense
that he cannot be charged with them as crimes, he is immune from their use as
evidence against him in a prosecution for some other crime. As Roberts
writes, “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.” The result is that the president is at least presumptively immune
and maybe absolutely so for taking a bribe in exchange for some official act,
because the evidence of the official act could never be used. Justice Amy Coney
Barrett notably declined to join this portion of the opinion, writing that
“[t]he Constitution does not require blinding juries to the circumstances
surrounding conduct for which Presidents can be held liable.”
If this all sounds less than coherent, as well as
dangerously enabling, that’s because it is both.
Error
Exacerbated by Incoherence
Even if you accept the majority’s three-category system for
slicing and dicing presidential conduct, the problems begin as soon as you
start to try to distinguish between the different categories. The borders of
each are remarkably ill-defined.
Consider the distinction between Categories One and Two.
Roberts explains that Category One comprises actions within the president’s
“conclusive and preclusive” power; it does not include “conduct in areas where
[the president’s] authority is shared with Congress.” As examples, he points to
the president’s authority to grant pardons, recognize foreign countries, remove
officials whom he has appointed under the Appointments Clause, and engage in
“investigative and prosecutive decision-making.” For this reason, Roberts
carves out as immunized the portion of the Jan. 6 indictment concerning Trump’s
efforts to appoint Jeffrey Clark as attorney general in order to direct the
Justice Department to investigate alleged election fraud.
But where exactly does the “exclusive sphere” of presidential
authority that receives absolute immunity move into the more ambiguous zone of
conduct for which immunity may—or may not be—only presumptive? Roberts spends
almost no time on this point.
Yet consider a string of hypotheticals raised by Justice Sonia
Sotomayor in her dissent:
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.
Roberts does not directly address any of these hypotheticals
in his opinion, choosing instead to mock the dissents’ “tone of chilling doom.”
So we are left on our own in sorting through where exactly the conduct
described by Sotomayor would fall. As to taking a bribe in exchange for a
pardon, it seems clear—under the examples that Roberts himself provides—that
this would fall into Category One and receive absolute immunity. To make
matters more confusing, Roberts oddly suggests in a footnote that the
prosecution might use the public record to establish the fact of the official
act.
What about ordering Seal Team Six to assassinate a political
rival or organizing a military coup? Both these activities would fall under the
president’s Article II authority as commander in chief. But is that authority
“conclusive and preclusive”? It’s hard to say, and it depends on context. After
all, Congress has established the Uniform Code of Military Justice to govern
permissible conduct by members of the military, and Congress may also constrain
the president’s offensive use of military power.
But then again, Congress has also produced legislation in
areas that touch on the Appointments Clause—such as the requirement that
the president must appoint someone “learned in the law” to serve as solicitor
general. Yet Roberts identifies the Appointments Clause and the president’s
power over firing principal officers at the Justice Department as an area of
core authority protected with absolute immunity. Where exactly does this leave
us?
When the Seal Team Six hypothetical first arose during oral
argument at the D.C. Circuit and then at the Supreme Court, commentators
pointed to it as an example of the dangerous extremes of presidential power
that Trump’s arguments could result in. George Conway described
the admission by Trump’s counsel that such an order would constitute
an official act as equivalent to walking into a “nasty trap.” And yet it is far
from obvious that such conduct would not be immune under the Supreme
Court’s reasoning. It’s clearly an official act, after all, and it would
therefore be at least presumptively immune and maybe absolutely immune. And
depending on how one interprets the Commander in Chief Clause, it could be
argued to be a conclusive and preclusive power. Nobody else, after all, is
allowed to command the military, and Congress is famously not allowed to order
the president which hill to take.
So that’s the porous border between Categories One and Two.
What about the border between Two and Three? Presidential conduct moves beyond
the outer perimeter and into activity unprotected by presidential immunity when
it is “manifestly or palpably beyond [the president’s] authority,” Roberts
writes. But remember that in “dividing official from unofficial conduct, courts
may not inquire into the President’s motives”—nor may they “deem an action
unofficial merely because it allegedly violates a generally applicable law.”
What’s more, “some Presidential conduct … certainly can qualify as official
even when not obviously connected to a particular constitutional or statutory
provision.”
“Distinguishing the President’s official actions from his
unofficial ones can be difficult,” Roberts notes helpfully. Some examples.
Roberts points to the component of the Jan. 6 indictment that focuses on
Trump’s efforts to bully Vice President Pence into upending the electoral
count. This, according to the majority, falls into Category Two: “Whenever the
President and Vice President discuss their official responsibilities, they
engage in official conduct.” But what about the fact that Pence was presiding
over the activities of the Senate, as part of a process established by the
Constitution as the role of Congress without any role for the president? The
majority identifies this as one reason why the prosecution might be able to
rebut the Category Two presumption of immunity. But couldn’t one just as easily
argue that this should place Trump’s conduct toward Pence in Category Three to
begin with? After all, the two men are talking about Pence’s exercise of his
powers in an area in which Trump has no constitutional role and is operating as
a candidate, not as an official. It’s certainly within Pence’s official
responsibility, but why is it within Trump’s, unless we can say the same for
any matter of public moment?
Likewise, the majority suggests that Trump’s involvement in
the fake electors scheme is entitled to presumptive immunity because, in
Trump’s view, “it was undertaken to ensure the integrity and proper
administration of the federal election,” under the president’s constitutional
authority to faithfully execute the laws. In her concurrence, though, Justice
Amy Coney Barrett argues that this conduct is “private and therefore not
entitled to protection” because “a President has no legal authority—and thus no
official capacity—to influence how the States appoint their electors.” The fact
that the majority itself cannot agree on how to apply its own standard is not
encouraging. Nor is the majority’s vastly expansive view of where the outer
perimeter lies. Under this logic, it is not at all clear why, say, the
president denying an allegation of rape by E. Jean Carroll would not be
considered an official act, since he’s commenting on a matter of public
interest that could undermine the public’s confidence in his leadership and
administration. And what about if, during a second term, he groped Italian
Prime Minister Giorgia Meloni while attending the G7?
Even for conduct firmly within Category Two, how exactly are
prosecutors meant to rebut the presumption of immunity that the Court has
established? This question has both substantive and procedural elements. The
government, Roberts writes, must “show that applying a criminal prohibition to
that act would pose no ‘dangers of intrusion on the authority and functions of
the Executive Branch.’” It’s difficult, though, to determine how precisely to
apply that standard, especially given the majority’s hawkish approach to
policing any conceivable limit on executive power. The two of us would not
previously have imagined that pressuring Pence might fall into this category to
begin with—how are we supposed to gauge whether criminalizing such conduct
would intrude on presidential power?
Moreover, it is completely unclear from the opinion what
kind of litigation procedure might address this question. Is it purely a
question of law in which the district court is to take as true the allegations
in the indictment? Or are the parties to call witnesses and develop a record on
which the court then rules? What if there are disputed questions of fact?
We could go on. The bottom line is that the Court has
created a profoundly muddled test that provides woefully insufficient guidance
for lower courts—and for Judge Tanya Chutkan’s court in particular. In doing
so, the majority also extinguishes whatever vestige of deterrence might have
remained for presidents considering using their office as a shield for
criminality. The standards set out in this opinion are so vague that an
enterprising defendant could contort them in all kinds of ways, particularly
given the limitations on inquiry into motive and available evidence. It’s hard
to imagine that a president would, in light of this, be much discouraged by the
ever-dimmer prospect of criminal liability.
In his speech
last night in reaction to the decision, President Biden made a revealing
remark:
[W]ith today’s Supreme Court decision, ... it will depend on
the character of the men and women who hold that presidency that are going to
define the limits of the power of the presidency, because the law will no
longer do it. I know I will respect the limits of the presidential power, as I
have for three and a half years. But any president, including Donald Trump,
will now be free to ignore the law.
Illegal presidential actions do not become lawful because
some doctrine of immunity protects a person who violates them from
consequences. Crimes are still crimes. And criminals are still criminals, even
if they cannot be adjudged as such. But Biden is correct to observe that what
the Supreme Court has done here is to make compliance with the law, at least
presumptively as to official acts, an entirely voluntary matter.
And it has done so knowing full well that a convicted felon
who tried to overturn a lawful election waits in the wings to inherit the
powers of the presidency.
The justices in the majority will surely tell themselves
that deciding who wields the powers of the presidency is a political question,
not the province of the judiciary to meddle in. But deciding with what new
tools of abuse and impunity to arm the presidency just as such a man is on the
verge of its accession is a decision, not an ineluctable deduction from history
and text and case law.
It is a decision of surpassing recklessness in
dangerous times.
To read more CLICK HERE
Posts
