SCOTUS Agrees Presidents Do Have Immunity From Criminal Prosecutions, But To What Degree?
The Supreme Court heard arguments Thursday morning in the case of Trump v. United States on the question of whether and to what extent a former president of the United States enjoys immunity from criminal prosecution for official acts while in office.
Most of the justices seemed dubious about both parties’ positions in this complex and largely uncharted area of law. No statute, prior Supreme Court precedent, or provision of the Constitution speaks directly to this issue. In 1982, the Supreme Court, in Nixon v. Fitzgerald, ruled that presidents enjoy immunity from civil litigation based on their official acts. The court, in a 5-4 ruling, grounded the immunity in the constitutional separation of powers. It reasoned that it would be inappropriate for the judicial branch to inquire into the reasons for presidential decisions for purposes of holding the president personally liable for damages. The court emphasized the unique nature and responsibilities of the president in arriving at this conclusion.
In Trump’s case, the parties and the justices all agreed on certain points. First, that purely private conduct by the president, which is allegedly criminal, could be prosecuted. Trump’s lawyer also conceded that campaign conduct, acting like an “office seeker” rather than an “office holder,” was private, rather than official, conduct.
Second, that the president has some constitutional powers that are exclusive to the presidency, such as the power to grant pardons, and therefore acts carrying out those powers simply cannot be criminalized by Congress or prosecuted by prosecutors. These were referred to as “core” areas of presidential power throughout the argument. Beyond these two points, the parties and the justices wildly diverged in their views, from the applicable nomenclature to the scope of any immunity, to the procedural mechanisms for implementing it in the courts.
Technically, the question before the court is: Whether and, if so, to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office?
Trump’s lawyer, John Sauer, urged the justices to find that former presidents enjoy immunity from criminal prosecution in the same way that the earlier Fitzgerald case applied in civil cases. That ruling would preclude criminal prosecution for any act that came within the “outer perimeter” of the scope of a president’s official acts, regardless of the reason, motive, intent, purpose, etc. for taking those acts. Sauer argued that an objective analysis should be used by the courts to determine if the conduct was or was not within the scope of the official responsibilities of the president. In other words, the analysis depends on whether the president’s actions could conceivably have been within the scope of his authority and not on what the president actually had in mind.
By contrast, Special Counsel Jack Smith’s lawyer, Michael Dreeben, argued that the Constitution does not provide any criminal immunity for the president, unlike the immunity for “speech and debate” provided for Congress. He argued that, instead, a former president can raise a case-by-case “challenge” to any indictment against him on the grounds that the specific acts alleged cannot be the basis for criminal charges under the Constitution. Dreeben told the high court he was speaking for the Department of Justice, not just the special counsel’s office, in taking this position.
In an unusual move, Trump’s counsel did not offer any rebuttal argument, apparently deciding that, after two and a half hours of argument, further discussion would not affect the views of any justice.
The leftist block of the court expressed concerns that Sauer’s position rendered a president “above the law” and would remove any restraints a serving president might feel to abide by the law while in office to avoid criminal prosecution later. By contrast, most of the conservative justices appeared to be more worried about setting a precedent that former presidents can be put on trial for prior official actions, thereby incentivizing political prosecutions.
Justice Kavanaugh, in particular, analogized the situation to the politicization that occurred under the now-expired independent counsel statute and roiled the administrations of Presidents Reagan, George H.W. Bush, and Clinton. Justice Barrett expressed concern about such cases being brought in state courts, where many of the structural safeguards that Dreeben claimed would tend to prevent such cases would not exist.
The justices probed both lawyers about how their respective positions would apply in a practical sense. For example, what procedures would be used, when in the criminal process could their respective proposals be used, and whether there would be appellate review immediately or only after conviction, etc. Justices Barrett and Sotomayor particularly were interested in these technical issues. Along with Justice Jackson, they also focused on the statutory “clear statement” principle, which is often invoked by the DOJ and its Office of Legal Counsel to limit the effect of generally applicable criminal statutes to the presidency out of a concern for not impeding the legitimate functions of the office. While not directly addressing the question of whether immunity exists, these technical and application concerns sought to flesh out each party’s proposed conclusion on the immunity issue.
There were some notable fireworks in the questioning. For example, Chief Justice Roberts got the questioning of the special counsel off with a bang by stating that he did not agree with the D.C. Circuit’s reasoning that any criminal charge brought by a prosecutor against a former president is necessarily legal. Evidently aghast at the lower court’s conclusion, he demanded to know why the court should not issue an opinion that simply reversed that “tautological” conclusion.
Justice Gorsuch, as he has in past arguments, formulated a hypothetical about “mostly peaceful protests.” He demanded to know if a president leading such a protest that delayed the vote on a piece of legislation could be charged under the federal obstruction statute after leaving office since such activities would lie outside the “core actions” Dreeben conceded were non-prosecutable. Gorsuch also scoffed at Dreeben’s suggestion that former presidents did not enjoy “immunity,” but could instead raise an “as applied Article II challenge” to say their conduct was sufficiently official and not subject to prosecution. He expressed the view that by whatever name, the concept at issue is “immunity” of some form.
In general, it appears the court as a whole is prepared to agree with former President Trump that there is at least some form of immunity for former presidents from criminal prosecution, regardless of the label the justices put on it. At the same time, it is clear the justices have very different ideas about the scope of this “immunity,” how it should actually apply at the trial level, and whether a trial court decision adverse to the former president can be appealed before trial.
Thus, the most likely result in this case appears to be a decision rendered with a long opinion and many concurrences and dissents, in whole or in part.
As to when that decision will be forthcoming, it is unclear when the justices will rule. Ordinarily, absent extenuating circumstances, they would do so by the end of their current term, which closes June 30.
Leslie McAdoo Gordon is the principal of McAdoo Gordon & Associates, P.C., founded in 2003. She provides criminal defense for individuals facing misdemeanor and/or felony charges, as well as “white collar” criminal offenses in state and federal courts. She also represents contractors and individuals facing administrative sanctions, including revocation of security clearances and debarment from federal contracts. Ms. McAdoo Gordon graduated cum laude from the Georgetown University Law Center in 1996. She is licensed to practice law in Maryland, Virginia, the District of Columbia, and numerous federal trial and appellate courts, including the U.S. Supreme Court.
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