The Volokh Conspiracy
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The Supreme Court's Grant in Trump v. U.S. (UPDATED)
The justices reframed the question presented in the case and expedited its consideration.
Yesterday the Supreme Court granted certiorari in Trump v. United States, in which Donald Trump has been trying to argue that he is immune from prosecution for acts taken while he was President (as Eugene noted here). It has ordered expedited briefing (although not quite as expedited as special counsel Jack Smith requested), and we can hope for a decision before the end of June.
As I noted in a blog post three weeks back, there were serious arguments in favor of the Court granting this case to iron out some aspects of the D.C. Circuit's ruling against Trump. (On this point, see this essay by Jack Goldsmith.)
While the D.C. Circuit correctly rejected Trump's immunity claims in a hastily drafted (yet largely well-crafted) decision, there are questions about how presidential immunity claims should be conceived and the extent to which immunity claims prevent even the initiation of prosecution, as opposed to requiring the government to make certain showings (e.g. that given acts were not official acts, etc.). That said, I would have preferred that the Court had acted a bit more quickly than it did, but the Court is not always known (or celebrated) for speed. (It seems the "shadow docket" has its virtues.)
The Court's order treated Trump's application for a stay as a petition for certiorari and rewrote the question presented in the case. Trump's application for a stay presented two questions:
I. Whether the doctrine of absolute presidential immunity includes immunity from criminal prosecution for a President's official acts, i.e., those performed within the "'outer perimeter' of his official responsibility." Nixon v. Fitzgerald, 457 U.S. 731, 756 (1982) (quoting Barr v. Matteo, 360 U.S. 564, 575 (1959)).
II. Whether the Impeachment Judgment Clause, U.S. CONST. art. I, § 3, cl. 7, and principles of double jeopardy foreclose the criminal prosecution of a President who has been impeached and acquitted by the U.S. Senate for the same and/or closely related conduct that underlies the criminal charges.
The Court limited its grant of certiorari to the following:
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.
There are a few points worth making about this. First, the Court is not considering the second question at all. The U.S. Court of Appeals decisively (and correctly) rejected this argument below. It was never a serious argument, and is not worth the justices' time. No, a failure of the Senate to convict an impeached President does not preclude subsequent prosecution for the same or related acts.
Second, as Jack Goldsmith notes in this Xitter thread, the Court framed the issue in terms of "presidential immunity," not "absolute immunity" as Trump had argued. Further, by asking both "whether" and "to what extent" a President may be immune, the Court can make clear that mere invocation of alleged "official acts" is not enough to make the prosecution go away, while still providing immunity for core executive prerogatives. So the Court could decide that running for reelection is not an "official" act entitled to any immunity, or not sufficiently core to executive function to justify immunity, without raising the specter of future partisan prosecutions of former presidents for official acts (e.g. ordering military actions, like drone strikes, that result in the death of U.S. citizens, etc.).
Stepping back, while I liked the idea of the Court simply leaving the D.C. Circuit's decision in place and allowing a trial to go forward, there is no question that this case was objectively cert worthy. Ideally, the Senate would have convicted Trump after he was impeached, as the argument that the Senate lacked such authority was quite weak, but that was not to be. It would also have been far preferable had the Justice Department acted more quickly to investigate and initiate prosecution than it did, but that was not to be either. This leaves us with the unhappy choice of letting the Supreme Court further define the contours of presidential immunity on the eve of a presidential election in which the defendant is a candidate. That is not a great place to be, but that's where we are.
UPDATE: Ed Whelan flags another interesting aspect of the Court's order that I overlooked.
The Court failed to grant Trump's stay application. The grant of certiorari had the same effect, however, as the Court ordered the D.C. Circuit to withhold its mandate. Here's the interesting part: It take five votes to grant a stay, but only four to grant certiorari. Thus the lack of a stay suggests a majority of the Court may have been inclined to affirm the D.C. Circuit, even if some had concerns about the lower court's reasoning. That at least four voted to grant certiorari may also mean no more than at least four justices saw a need to refine the D.C. Circuit's analysis so as to provide greater clarity about the scope of presidential immunity going forward.
