A Semi-Short Explainer of Presidential Immunity Decision

I’m going to try to explain SCOTUS’ Trump immunity decision, objectively, for your informational purposes. I am going to try to do so without opinion, passion, snark, or derision. Anyone familiar with me can probably guess where my estimation of this decision falls, but in the name of an informed electorate, I will try to stick to factual explanation.

I’ll summarize the background briefly, as I can’t imagine readers of this blog not already being well-informed of such.

Former President Trump was indicted for allegedly attempting to overthrow the results of the 2020 election in which he lost to President Biden. The indictment alleged that in order to do so, Trump 1) tried by means of “knowingly false claims of election fraud” to get state officials to change their electoral vote counts; 2) facilitated the creation and submission of fraudulent slates of electors from seven states; 3) tried to make the Justice Department send letters to targeted states alleging that the DoJ had found “significant concerns” with the election in those states; 4) tried to get then-VP Mike Pence to use his role in the election certification process to fraudulently alter election results; and 5) egged on the angry protestors attacking the Capitol on January 6th by “redoubling efforts to levy false claims of election fraud”. These allegations were the basis of four counts: conspiracy to defraud the United States in violation of 18 U. S. C. §371; 2) conspiracy to obstruct an official proceeding in violation of §1512(k); 3) obstruction of and attempt to obstruct an official proceeding in violation of §1512(c)(2)¹; and 4) conspiracy against rights in violation of §241.

Trump filed a motion to dismiss in the District Court, arguing that all of the actions underlying these charges were performed in his official capacity as president, and that he should thus be immune from criminal prosecution. The Court denied the motion, holding that “former Presidents do not possess absolute federal criminal immunity for any acts committed while in office”, but did not address whether or not the acts alleged were “official acts”, as Trump had argued. On appeal, the DC Circuit affirmed the lower court, reasoning in part that because Trump’s alleged conduct violated “generally applicable criminal laws,” these actions “were not properly within the scope of lawful actions.” In other words, the appeals Court said that committing a crime cannot be considered acting within one’s official duties.

Thus the question came to the Supreme Court of the United States: Does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office, and if so, to what extent?

Short answer, from a 6-3 SCOTUS: Yes, a former President does enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office. Obviously, the questions that follow are how much immunity, and what constitutes an official act?

Chief Justice Roberts wrote the opinion, from which Justices Kagan, Sotomayor, and Jackson dissented. After acknowledging the unprecedented nature of this case – this is the first ever criminal prosecution of a former President for actions taken during the Presidency – Roberts vows that the Court will “focus on the ‘enduring consequences upon the balanced power structure of our Republic'” (quoting Youngstown Sheet and Tube Co v. Sawyer.²

The Court explains that a President’s authority is derived either from Congress or from the US Constitution. When a president’s action is performed pursuant to constitutional authority, neither Congress nor the courts may constrain except to determine whether the act is in fact within the claimed constitutional authority. In Youngstown, Truman claimed his order to seize steel mills in order to circumvent a strike was within his power as Commander in Chief of the Military. The Court struck down the EO, holding that interfering in a labor dispute was not within that authority and was an act of “individual will”. But unless a Court can make such a determination – that there is no Constitutional or congressional authority for a given presidential action – Roberts writes, “[the President’s} discretion in exercising such authority cannot be subject to further judicial examination.”

Roberts offers examples of other such “conclusive and preclusive” powers of the President with which Congress and the courts may not interfere, such as determinations of recognition of foreign countries and pardoning power, as well as the power to remove presidential appointees, derived from Article II (this italicized part will be important shortly.) Thus, Roberts writes, “the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.” (Italics mine.)

Moving on, Roberts discusses the intentions of the Framers in placing the power of the executive branch in the hands of a single individual, as opposed to the hands of many, as with the judicial and legislative branches:

The Framers accordingly vested the President with “supervisory and policy responsibilities of utmost discretion and sensitivity.” Fitzgerald, 457 U. S., at 750. He must make “the most sensitive and far-reaching decisions entrusted to any official under our constitutional system.” Id., at 752. There accordingly “exists the greatest public interest” in providing the President with “‘the maximum ability to deal fearlessly and impartially with’ the duties of his office.” Appreciating the “unique risks to the effective functioning of government” that arise when the President’s energies are diverted by proceedings that might render him “unduly cautious in the discharge of his official duties,” we have recognized Presidential immunities and privileges “rooted in the constitutional tradition of the separation of powers and supported by our history.”

Citations omitted.

The Court took up Presidential immunity in 1974 in Nixon v. Fitzgerald, which I summarized here a few years ago. Fitzgerald provided former presidents with absolute immunity in cases involving civil matters and damages for liability. Roberts notes, however, that the Court has several times rejected claims of presidential immunity when it comes to subpoenas. But he adds that there are certain exceptions for “executive privilege”, which protects a president’s communications. These privileges and immunities are necessary, according to the majority opinion here, to ensure the president is free to make difficult decisions and receive candid advice from his advisors without fear of lawsuits and other such negative consequences.

The Roberts Court extends this reasoning to the need to shield a president from criminal charges, which can have much more dire consequences than monetary judgments:

Potential criminal liability, and the peculiar public opprobrium that attaches to criminal proceedings, are plainly more likely to distort Presidential decisionmaking than the potential payment of civil damages.

Roberts concedes that there is a competing interest in righting wrongs against the public, writing bluntly that the President is not above the law.

In light of these considerations and principles, the Court comes to the conclusion that there is “at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility.” (Italics mine.)

A quick explanation about “presumptive immunity”: whenever anything is “presumptive” in the law, it means it is assumed correct and the burden will be on the other side to rebut it and persuade the finder of fact otherwise. For instance, Trump is presumptively innocent of the charges in this indictment, as is any defendant who has not charged but not convicted. That presumption can be overcome by evidence. To rebut the presumptive immunity advanced by this case, the prosecution must show that “applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.'” The Court here does not endeavor to determine whether that showing has been made.

The majority states that any such immunity applies only to “official acts”, but notes that no effort has yet been made to distinguish which, if any, of the indicted conduct is properly considered “unofficial”. Though the parties have not briefed this question and it is not the question currently before the Court, Roberts nevertheless sets out to provide “guidance” to help the lower court make this determination on remand.

At the outset, Roberts writes that Trump’s attempts to pressure the DOJ and the attorney general to investigate election fraud, and threatening to fire the latter, is absolutely immune from criminal prosecution because of the president’s “conclusive and preclusive” constitutional authority to remove appointees. And because it is the constitutional duty of the executive to “take Care that the Laws be faithfully executed, directing the Department of Justice is an official act regardless of the impetus for the action.

The indictment’s allegations that the requested investigations were “sham[s]” or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. And the President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials. (Emphasis added; citation to record omitted.)

Moving on to Trump’s attempt to get VP Pence to stop the certification, the Court points to the close working relationship of the president and vice-president, and the VP’s constitutional duties, and determines that conversations between the two are likewise official action; the Court finds “at least” presumptive immunity for this conduct. In discussing whether or not the presumption is rebuttable, the Court is on the fence and leaves it to the lower court to determine, conceding that Pence would be acting in his capacity as Senate President in his role at certification, not as part of the executive, but also positing that a VP casting a tie breaking vote in other matters in that same capacity could be doing so to further the executive’s agenda. Thus, “[a]pplying a criminal prohibition to the President’s conversations discussing such matters with the Vice President—even though they concern his role as President of the Senate—may well hinder the President’s ability to perform his constitutional functions.”

As to whether the allegations regarding the calls to state officials and the attempted creation and submission of false slates of electors fall under official or unofficial action, the Court is likewise unwilling to decide, remanding for additional briefing and fact finding and determination by the lower court. While the Court concedes that the appointment of electors and offers the executive no part in the process, it still opines “the President may speak on and discuss such matters with state officials—even when no specific federal responsibility requires his communication—to encourage them to act in a manner that promotes the President’s view of the public good.”

The Court turns lastly to Trump’s public speech to the Capitol rioters, including tweets leading up to January 6th in which he encouraged them to travel to DC, and his statements to the crowd that day. The Court first opines that speaking to the public is a significant part of the presidency: “Indeed, a long-recognized aspect of Presidential power is using the office’s “bully pulpit” to persuade Americans, including by speaking forcefully or critically, in ways that the President believes would advance the public interest… For these reasons, most of a President’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities.”

But the Court notes there may be exceptions, instances in which he speaks not as president but as, say, a candidate. Determining the official or unofficial nature of such comments will require “objective analysis of ‘content, form, and context'”. Roberts says the indictment includes “only select Tweets and brief snippets of the speech” and lacks context, which will be important in making the determination of official versus unofficial acts. “Knowing, for instance, what else was said contemporaneous to the excerpted communications, or who was involved in transmitting the electronic communications and in organizing the rally, could be relevant to the classification of each communication.”

The majority opinion goes further, holding that any act for which immunity is found may not be used as evidence in a trial on acts for which he is not immune, as doing so would negate the point of immunity by hampering a president’s decision making, if he knows it might be used against him in court someday.

Further, and for the same reasons, Roberts writes that motive may not be considered when determining whether an act is official or not. This holding is consistent with Fitzgerald. As I wrote in 2019:

The Court opined that, because Fitzgerald’s firing was part of an otherwise legal departmental reorganization, an inquiry into his subjective motivations is improper and would lead to every official, lawful act being thoroughly examined for “forbidden purpose”, an unworkable and inefficient result that would “deprive absolute immunity of its intended effect.” In other words, if the action is a lawful exercise of the President’s power “but for” his improper motivations, then he is immune. This standard of “objective reasonableness”, was a rejection of the prior immunity test, which required a showing of “good faith” in the lawfulness of one’s actions in order to enjoy immunity.

The rest of the opinion defends itself from the dissents, and since I am aiming for a short explainer, I’ll leave it at that and briefly summarize the concurrences and dissents, the latter of which he says “strike a tone of chilling doom.”

Justice Thomas concurs, but writes separately to offer his opinion that the appointment of Special Counsel was itself illegal, because no such office has been established by law.

Justice Barrett concurs with most of the ruling, but not all. She dislikes framing the issues as “immunity” and would frame it more properly as a determination of whether or not the criminal law involved is applicable to an official act and, if so, whether prosecution of that act would impose a “‘dange[r] of intrusion on the authority and functions of the Executive Branch.'” Even so, she finds the majority consistent with that view.

What she does not agree with, however, is the Court’s holding that conduct for which a former president is immune cannot be used as evidence in a trial of acts for which there is no immunity.

The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable. Consider a bribery prosecution—a charge not at issue here but one that provides a useful example. The federal bribery statute forbids any public official to seek or accept a thing of value “for or because of any official act.” The Constitution, of course, does not authorize a President to seek or accept bribes, so the Government may prosecute him if he does so. Yet excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution. To make sense of charges alleging a quid pro quo, the jury must be allowed to hear about both the quid and the quo, even if the quo, standing alone, could not be a basis for the President’s criminal liability.

Barrett opines that the rules of evidence are sufficient to protect a defendant ex-president from undue prejudice by the jury.

The dissent penned by Justice Sotomayor and joined by Kagan and Jackson calls the majority opinion “a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.” She accuses the majority of inventing an “atextual, ahistorical, and unjustifiable immunity.” In her view, the ruling broadly covers nearly any act of the President, so long as it can be couched within the realm of his official duties:

Whether described as presumptive or absolute, under the majority’s rule, a President’s use of any official power for any purpose, even the most corrupt, is immune from prosecution. That is just as bad as it sounds, and it is baseless.

Justice Jackson dissents separately, expressing her dismay at what she sees as a redistribution of power among the three branches which leaves congress disproportionately weak compared to the executive and the courts. She then sets out her concerns for how the majority’s ruling will work in practice. In a footnote, she presents the following:

To fully appreciate the oddity of making the criminal immunity determination turn on the character of the President’s responsibilities, consider what the majority says is one of the President’s “conclusive and preclusive” prerogatives: “ ‘[t]he President’s power to remove . . . those who wield executive power on his behalf.’ ” While the President may have the authority to decide to remove the Attorney General, for example, the question here is whether the President has the option to remove the Attorney General by, say, poisoning him to death. Put another way, the issue here is not whether the President has exclusive removal power, but whether a generally applicable criminal law prohibiting murder can restrict how the President exercises that authority.

I’ve given the dissents short shrift here, because I’m pushing the limits of “short explainer” and the important part is the actual effects of the Court’s ruling, not the rulings the minority would have issued. But they are well worth reading.

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1. §1512(c)(2) is the same obstruction charge the Court just last week restricted from use against hundreds of January 6th rioters in Fischer v United States.
2. Youngstown was a 1952 case concerning an Executive Order issued by President Truman, directing government seizure of all steel mills in the United States in order to prevent a labor strike. Per the Court, the President had no such authority, either by statute or by his role as “Commander in Chief” of the military”