The Volokh Conspiracy
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Thoughts on the Trump Immunity Decision
The Supreme Court's flawed decision largely ignores text and original meaning, and fails to resolve crucial issues.
Trump v. United States, Monday's Supreme Court decision on presidential immunity from criminal prosecution, has many flaws. Others, beginning with the dissenting justices, have pointed out most of them already. But I want to highlight two major problems: the majority's neglect of originalism, and the extremely fuzzy nature of the standards it adopts. If the decision has a saving grace, it's that the vagueness might turn out to make it less harmful than it seems at first sight, depending on how lower courts and possible future Supreme Court decisions interpret it.
Perhaps there is a better defense for the majority's approach than what they themselves offer. But the weakness of the Court's reasoning is still significant.
Chief Justice John Roberts' majority opinion holds that the president enjoys absolute immunity from criminal prosecution for the exercise of "core constitutional powers," that there is at least some degree of presidential immunity (either absolute or merely presumptive) for other "official acts," and that there is no immunity for purely "private acts." The most striking aspect of the decision is that it offers virtually no originalist or textualist support for any of this.
The liberal living-constitutionalist dissenting justices pay much more attention to originalist considerations here than the conservative originalist majority. As Justice Sonia Sotomayor's dissent point outs, nothing in the text or original meaning of the Constitution gives the president anything like this degree of immunity. In fact, text and original meaning cut the other way:
The Constitution's text contains no provision for immunity from criminal prosecution for former Presidents. Of course, "the silence of the Constitution on this score is not dispositive." United States v. Nixon, 418 U. S. 683, 706,n. 16 (1974)… The omission in the text of the Constitution is worth noting, however, for at least three reasons.
First, the Framers clearly knew how to provide for immunity from prosecution. They did provide a narrow immunity for legislators in the Speech or Debate Clause. See Art. I, §6, cl. 1 ("Senators and Representatives . . . shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place"). They did not extend the same or similar immunity to Presidents.
Second, "some state constitutions at the time of the Framing specifically provided 'express criminal immunities' to sitting governors." Brief for Scholars of Constitutional Law as Amici Curiae 4…. The Framers chose not to include similar language in the
Constitution to immunize the President. If the Framers "had wanted to create some constitutional privilege to shield the President . . . from criminal indictment," they
could have done so… They did not.Third, insofar as the Constitution does speak to this question, it actually contemplates some form of criminal liability for former Presidents. The majority correctly rejects
Trump's argument that a former President cannot be prosecuted unless he has been impeached by the House and convicted by the Senate for the same conduct…. The majority ignores, however, that the Impeachment Judgment Clause cuts against its own position. That Clause presumes the availability of criminal process as a backstop by establishing that an official impeached and convicted by the Senate "shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law." Art. I, §3, cl. 7 (emphasis added). That Clause clearly contemplates that a former President may be subject to criminal prosecution for the same conduct that resulted (or could have resulted) in an impeachment judgment—including conduct such as "Bribery," Art. II, §4, which implicates official acts almost by definition.Aware of its lack of textual support, the majority points out that this Court has "recognized Presidential immunities and privileges 'rooted in the constitutional tradition of the separation of powers and supported by our history….' " That is true, as far as it goes. Nothing in our history, however, supports the majority's entirely novel immunity from criminal prosecution for official acts.
The historical evidence that exists on Presidential immunity from criminal prosecution cuts decisively against it. For instance, Alexander Hamilton wrote that former Presidents would be "liable to prosecution and punishment in the ordinary course of law." The Federalist No. 69…. For Hamilton, that was an important distinction between "the king of Great Britain," who was "sacred and inviolable," and the "President of the United States," who "would be amenable to personal punishment and disgrace." Id., at 458. In contrast to the king, the President should be subject to "personal responsibility" for his actions, "stand[ing] upon no better ground than a governor of New York, and upon worse ground than the governors of Maryland and Delaware," whose State Constitutions gave them some immunity…
At the Constitutional Convention, James Madison, who was aware that some state constitutions provided governors immunity, proposed that the Convention "conside[r]
what privileges ought to be allowed to the Executive…." There is no record of any such discussion…. Delegate Charles Pinckney later explained that "[t]he Convention which formed the Constitution well knew" that "no subject had been more abused than privilege," and so it "determined to . . . limi[t] privilege to what was necessary,
and no more." 3 id., at 385. "No privilege . . . was intended for [the] Executive." Ibid.2
Other commentators around the time of the Founding observed that federal officials had no immunity from prosecution, drawing no exception for the President…
The majority has no meaningful rebuttal to any of this. Their neglect of text and original meaning might be more defensible if there was strong precedent on the subject. But there is no such precedent, because the courts have never before considered the issue of presidential immunity from criminal prosecution.
The majority mainly relies on the consequentialist policy argument that the president must have extensive immunity so he won't be deterred from carrying out his duties with "bold and unhesitating action." They fail to explain why this consideration should outweigh the danger that sweeping immunity would incentivize presidents to commit horrific crimes and abuses of power - such as, for example, trying to use force and fraud to stay in power after losing a presidential election!
I would suggest that curbing such dangers is more than worth some reduction in "bold and unhesitating action." Indeed, there are many areas where the nation would better off if the executive were less bold, and took less action. Regardless, at least from an originalist point of view, the tradeoff here was made by the framers and ratifiers, and should not be second-guessed by the courts, at least not without a vastly more compelling reason than the majority gives us.
The majority does rely on modern precedent restricting civil liability for the president, such as Nixon v. Fitzgerald (1982). They note that criminal liability might have an even bigger chilling effect on presidential action. But they neglect the fact that presidential criminality might be a bigger menace to the republic and cause more harm than civil wrongdoing.
The majority in Nixon v. Fitzgerald recognized that "there is a lesser public interest in actions for civil damages than, for example, in criminal prosecutions." Thus, it offers little support for extending immunity to the criminal context. I think the dissenting justices in that close 5-4 case were right to argue that civil immunity should also be severely limited. As Justice Byron White wrote in his dissent, "I do not agree that, if the Office of President is to operate effectively, the holder of that Office must be permitted, without fear of liability and regardless of the function he is performing, deliberately to inflict injury on others by conduct that he knows violates the law." Regardless, the decision has little relevance to criminal liability, and cannot outweigh the text and original meaning.
In addition to being poorly grounded in the text and original meaning, the majority's ruling is also extremely vague and unclear on key points. It gives us very little guidance on how to tell the difference between "core powers" (subject to absolute immunity), and other "official acts" (which may not be). That seems like a crucial issue on which the justices should have given more guidance to lower courts.
Similarly, the Court refuses to tell us whether presidents get absolute immunity for non-core official acts, or merely presumptive immunity. Another whopper of an omission! If immunity in such cases is just presumptive, it is hard to tell what would be enough to overcome the presumption. The majority does suggest, at one point, that the president must "be immune from prosecution for an official act unless 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." Taken literally, this would preclude prosecution for any acts even remotely connected to anything official, a there might always be at least some small danger of "intrusion" on executive power in such situations. But maybe a small or indirect danger isn't enough.
The crucial distinction between "official acts" and "private acts" is also poorly explained, though the court does indicate (wrongly, I think) that presidential motives cannot be considered in distinguishing between the two, and that official acts cannot be used as evidence in prosecuting private acts. The majority also holds (for no good reason, in my view) that various types of communications between the president and Department of Justice officials are automatically official and not subject to prosecution.
The majority's vagueness on key points might lead the decision to be less harmful than it initially seems. Lower courts and possible future Supreme Court rulings might decide on a narrow definition of "core powers," rule that other official acts get only presumptive immunity, and that the presumption can be overcome fairly easily. They could also potentially settle on a relatively narrow definition of what counts as an "official" act, as opposed to a "private one." If that happens, the majority might have some justification for claiming the dissenters are overly alarmist, and that they haven't placed the president "above the law" when it comes to criminal liability.
Justice Amy Coney Barrett's concurring opinion does indeed make some of these moves. As a result, she concludes that "the President's constitutional protection from prosecution is narrow," extending only to areas where he has "conclusive and preclusive authority," but not to those where "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."
If Justice Barrett's approach prevails, this would allow prosecution of much of Trump's post-election conduct in 2020-21. It would also dispose of a variety of dangerous scenarios, such as the now-famous "SEAL Team 6" hypothetical, where the president orders the military to assassinate political rivals. While the president is the Commander-in-Chief of the armed forces, Congress, under Article I of the Constitution, has "concurrent authority" to makes "rules for the government and regulation of the land and naval forces." It can and does use that power to criminalize war crimes and other improper uses of the military. The Seal Team 6 assassination scenario surely qualifies.
But it's far from clear the other five majority justices are with Barrett on this, and some reason think they may not be, give their emphasis on the need to shield the president from prosecutions that might keep him from being "bold and unhesitating."
Barrett also rightly breaks with the majority on the issue of evidentiary use of official acts. Her argument on that score strikes me as compelling.
One can argue we don't need criminal liability to control presidential abuses of power. After all, it has never been used prior to Trump. But past presidents did commit some horrible acts that might have been prevented by fear of criminal prosecution. The Japanese internments in World War II are a notable example. The same goes for a slew of horrific civil liberties violations committed by Woodrow Wilson, among others. If Trump is the first president to be subject to criminal prosecution for acts committed while in office, it is in large part because some previous presidents have gotten away with crimes they should not have been allowed to commit with impunity. The Court should not elevate this indefensible neglect of presidential criminality to a binding constitutional principle.
To be sure, there is a genuine danger that political opponents would go after former presidents for petty offenses, in our world where the range of federal crimes has grown to vast proportions, and most adult Americans have probably committed a federal crime of some kind in the course of their lives. But that problem shoud be addressed by Congress passing legislation giving presidents targeted immunity for various minor offenses. Better still, it can eliminate many of these offenses from the books entirely. This is not an issue that should be resolved by judicial policymaking in defiance of the text and original meaning of the Constitution.
