The Volokh Conspiracy

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Everyone Needs To Take A Deep Breath About Trump v. United States

No one asked the Court to reverse Nixon v. Fitzgerald. And the Court found that the civil and criminal contexts cannot be distinguished. The decision should not have been a surprise.


In the aftermath of Trump v. United States, I wrote a series of posts breaking down most facets of the opinion as a doctrinal matter (1, 2, 3, 4, 5, 6, 7, 8). My general impression is that the decision was not premised on original public meaning, but was a mishmash of precedent, pragmatism, and "traditionalism." Yet the reaction was one of stunned outrage! It is the next Roe v. Wade. We need a constitutional amendment to overrule it. We need to pack the Supreme Court! And so on.

Never forget, most commentary about the Supreme Court is performative. Critics have a vested interest in making the decisions seem so much worse than they really are. There really should not have been much of a surprise here.

First, Nixon v. Fitzgerald has been on the books for decades. That decision established absolute civil immunity for all acts within the "outer perimeter" of the President's duties. No one asked the Court to reconsider Nixon, so that was precedent. During oral argument, Justices Jackson and Sotomayor repeatedly tried to explain why civil immunity made sense, but criminal immunity did not. But the majority disagreed. Critically, the Court found that it would make no sense to provide immunity for civil suits, but not for criminal prosecutions. Indeed, as I noted, the risks from a criminal prosecution of the President are greater than the risk of a civil lawsuit. One the Court declined to distinguish civil and criminal suits, it follows naturally that the absolute immunity recognized in Nixon would apply in the criminal context for Trump. None of this should be surprising.

Second, once the Court recognized that there would be absolute immunity for "core" powers, and presumptive immunity for other actions, the Court had to adopt some test. The Fitzgerald Court's "outer perimeter" test was never particularly helpful. Instead, Chief Justice Roberts borrowed from Blasingame v. Trump, a precedent from the D.C. Circuit. This case involved a civil suit against President Trump for his role on January 6:

For those reasons, the immunity we have recognized extends to the "outer perimeter" of the President's official responsibilities, covering actions so long as they are "not manifestly or palpably beyond [his] authority." Blassingame v. Trump, 87 F. 4th 1, 13 (CADC 2023) (internal quotation marks omitted); see Fitzgerald, 457 U. S., at 755–756 (noting that we have "refused to draw functional lines finer than history and reason would support").

Given Fitzgerald, and how the lower courts have applied Fitzgerald, the Court was going to have to apply some sort of test to determine immunity. The Court gave some guidance to the lower courts. I don't know how helpful it will be, but the Court here was treading in uncertain territory. Is the framework so unreasonable?

Third, I think most of the critics of the decision still believe that the law can constrain a populist presidential candidate. It can't. Alvin Bragg, Jack Smith, Fani Willis, and so on. None of them have made a dent on Trump. The WSJ summed things up nicely:

None of this is a vindication of Mr. Trump's conduct or an endorsement of paying off a porn star, trying to overturn the 2020 election, or refusing to help a besieged Congress on Jan. 6. But as the past nine years have shown over and over, Mr. Trump's biggest opponents are often his best asset. They convinced themselves he won in 2016 by colluding with Russia, and special counsel Robert Mueller would get to the bottom of it. They impeached him twice. Mr. Trump plowed through it all.

It is a fantasy to believe that any test that Chief Justice Roberts could make up would control this president or any other. The law only goes so far.

Everyone should take a deep breath. The only way to defeat Trump is at the ballot box. That was true in 2016. That was true in 2020. And it will be true in 2024.