The Volokh Conspiracy

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The Presidential Immunity Trichotomy

Chief Justice Roberts sought to put an end to Lawfare against the presidency.


Trump v. United States is one of the Supreme Court's most significant separation of powers cases. While Roberts is often described as a minimalist, he was just the opposite here. Justice Sotomayor aptly observes in dissent, "In reaching out to shield some conduct as official while refusing to recognize any conduct as unofficial, the majority engages in judicial activism, not judicial restraint."

The Court could have simply resolved whether the particular allegations in the indictment warranted immunity. But Chief Justice Roberts did not stop there. The opinion is quite sweeping. Chief Justice Roberts developed a framework to address all facets of presidential power. He put forward a presidential immunity trichotomy.

Supreme Court Justices have often laid out three-level tests. Perhaps the most famous was Justice Jackson's triptych in Youngstown. Gone, but not forgotten, was the trimester framework from Roe. And now the Trump trichotomy.

First, "at least with respect to the President's exercise of his core constitutional powers, this immunity must be absolute." These powers are described as "conclusive and preclusive," "exclusive," and an "exclusive sphere of constitutional authority."

Second, for other "official actions" that are outside the "core constitutional powers," there is at least "presumptive immunity." The Court explains, there is "at least a presumptive immunity from criminal prosecution for a President's acts within the outer perimeter of his official responsibility." The Court affords immunity "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.'"

Third, for all other "private" or "unofficial" actions, there is no immunity.

Why did Roberts write this opinion so broadly? I think Chief Justice was troubled by years of Lawfare against President Trump. From the moment Trump was inaugurated, there was the Emoluments Clauses litigation. Early on in the presidency, Special Counsel Robert Mueller was appointed to investigate Trump's removal of the FBI Director–a power that the Court expressly recognized could not be criminalized. And Mueller's investigation routinely sought to probe Trump's motivations, and scrutinize his interactions with senior advisors–more conduct that the Court recognized could not be criminalized. The first Trump impeachment, for which Roberts had a front-row seat, was premised on the President's exercise of foreign policy powers–again more "core" presidential activity. (I'll revisit the Mueller investigation and Impeachment 1.0 in another post.) And now Special Counsel Smith, rather than bringing a targeted indictment on clearly private acts, chose to bring a blunderbuss indictment that swept in many official acts based on a stretched reading of federal law.

Roberts has seen what happened before, and could anticipate what would happen in the future. So he put his foot down. To prevent future Lawfare, the Chief established broad boundaries of where presidential powers begin and end.

Update: Will Baude makes a similar point in the Times about why the Court ruled the way it did:

What is more likely is that in these cases, the court sees itself as trying to save the country from other institutions' disproportionate responses to Mr. Trump. It believes that lower courts and the Justice Department have succumbed to a version of Trump derangement syndrome, which is said to afflict so many liberal elites and even Never-Trump conservatives.

Indeed, in Trump v. United States, the court aristocratically insisted that "unlike the political branches and the public at large," the Supreme Court was taking the long view, not thinking about Mr. Trump's situation in particular.

The court is motivated by statesmanship, which the country sorely needs today. The problem is that this statesmanship is a form of the kind of outcome-oriented policymaking that the court disparages in other contexts. It trusts states to handle the homelessness crisis but not ballot access for insurrectionists, even though the Constitution trusts states with both. It trusts juries to handle fines for securities fraud but not punishment for abuse of the presidency, even though the Constitution trusts juries with both.

When dealing with Mr. Trump in particular, the court is so sure that our other institutions cannot be trusted that it fails to look in the mirror.