The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Supreme Court

Presidential Immunity As a Question of Executive Power

There is no textual basis for "immunity" as such, but there are structural reasons why some degree of insulation is inevitable.


Justice Barrett's concurring opinion in Trump v. United States is more satisfying than the majority on several counts. On the issues upon which Barrett and the Court's majority disagree, she has the better of the argument.

Given the lack of any explicit textual basis for presidential immunity, I also believe her formulation of how to think about presidential "immunity" as a consequence of the nature of executive power to be more helpful than that offered by the majority (though, to be fair, prior Court decisions had relied upon a more traditional immunity formulation).

In short, Barrett explains that if there are some exercises of executive power that are beyond Congress's reach (other than through impeachment), then those exercises of executive power cannot be criminalized. From her opinion:

the Constitution prohibits Congress from criminalizing a President's exercise of core Article II powers and closely related conduct. . . . The Court describes the President's  constitutional protection from certain prosecutions as an "immunity." As I see it, that term is shorthand for two propositions: The President can challenge the constitutionality of a criminal statute as applied to official acts alleged in the indictment, and he can obtain interlocutory review of the trial court's ruling.

There appears to be substantial agreement on the first point. Like the Court, the dissenting Justices and the Special Counsel all accept that some prosecutions of a President's official conduct may be unconstitutional. . . . As for interlocutory review, our precedent recognizes that resolving certain legal issues before trial is necessary to safeguard important constitutional interests—here, Executive Branch independence on matters that Article II assigns to the President's discretion.

Properly conceived, the President's constitutional protection from prosecution is narrow. The Court leaves open the President for any official conduct, instructing the lower courts to address that question in the first instance. . . . I would have answered it now. Though I agree that a President cannot be held criminally liable for conduct within his "conclusive and preclusive" authority and closely related acts, . . . the Constitution does not vest every exercise of executive power in the President's sole discretion, Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring). Congress has concurrent authority over many Government functions, and it may sometimes use that authority to regulate the President's official conduct, including by criminal statute. Article II poses no barrier to prosecution in such cases.

I would thus assess the validity of criminal charges predicated on most official acts—i.e., those falling outside of the President's core executive power—in two steps. The first question is whether the relevant criminal statute reaches the President's official conduct. Not every broadly worded statute does. For example, §956 covers conspiracy to murder in a foreign country and does not expressly exclude the President's decision to, say, order a hostage rescue mission abroad. 18 U. S. C. §956(a). The underlying murder statute, however, covers only "unlawful" killings. §1111. The Office of Legal Counsel has interpreted that phrase to reflect a public-authority exception for official acts involving the military and law enforcement. Memorandum from D. Barron, Acting Assistant Atty. Gen., to E. Holder, Atty. Gen., Re: Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations Against Shaykh Anwar al-Aulaqi 12–19 (July 16, 2010); . . . I express no view about the merits of that interpretation, but it shows that the threshold question of statutory interpretation is a nontrivial step. . . .

This two-step analysis—considering first whether the statute applies and then whether its application to the particular facts is constitutional—is similar to the approach that the Special Counsel presses in this Court. . . . It is also our usual approach to considering the validity of statutes in situations raising a constitutional question. See, e.g., Seila Law LLC v. Consumer Financial Protection Bureau, 591 U. S. 197, 213, 229 (2020). An important difference in this context is that the President is entitled to an interlocutory appeal of the trial court's ruling. . . . A criminal defendant in federal court normally must wait until after trial to seek review of the trial court's refusal to dismiss charges. . . . But where trial itself threatens certain constitutional interests, we have treated the trial court's resolution of the issue as a "final decision" for purposes of appellate jurisdiction. . . .

Her opinion concludes:

The Constitution does not insulate Presidents from criminal liability for official acts. But any statute regulating the exercise of executive power is subject to a constitutional challenge. . . . A criminal statute is no exception. Thus, a President facing prosecution may challenge the constitutionality of a criminal statute as applied to official acts alleged in the indictment. If that challenge fails, however, he must stand trial.

I would have preferred it had the Chief Justice followed Justice Barrett's lead (and had it agreed with her on the evidentiary question addressed in part III-C of the majority opinion), but that was not to be. I suspect the Chief was working hard to hold a majority together, but was unable to make concessions to Barrett while keeping the other conservatives aboard, and if there was no prospect of building a clear majority to his left, the Chief wrote the opinion that could hold five votes throughout.