Like the Court, itself, we’ll close out OT23 with Trump v. United States (No. 23-939), a highly consequential (and arguably consequentialist) decision on presidential immunity from criminal prosecution. As you all know by now, the Supreme Court, in a 6-3 decision authored by the Chief Justice (with important concurring opinions by Justice Thomas and, in particular, Justice Barrett), held that presidents are entitled to absolute immunity from criminal prosecution—even after they leave office—for actions taken within their “conclusive and preclusive constitutional authority” and to at least presumptive immunity from prosecution for all “official acts,” but they do not have immunity from prosecution for unofficial acts.
The immediate effect of the decision is to remand Special Prosecutor Jack Smith’s case against former President Donald Trump to determine which of the acts described in the indictment involved “core” official acts, such that they cannot be prosecuted at all (or even introduced as evidence), which involved noncore official acts that could potentially be prosecuted if the Special Prosecutor can rebut the presumption of immunity by showing prosecution would not unduly intrude on the authority and functions of the Executive Branch, and which involved unofficial acts for which Trump has no immunity. Needless to say, the odds of the lower courts conclusively sorting out those questions before Inauguration Day 2025 (let alone Election Day 2024) are slim. So the practical effect of the Court’s decision may be to effectively derail the criminal case against President Trump for election interference (though possibly not for mishandling and lying about classified documents after he was president or paying off porn stars before he was president), while also insulating a potential former President Biden from retaliatory prosecution for official acts that he has taken over the last four years.
To put it mildly, the decision raises many questions. Read on for our full summary, but don’t expect any satisfying answers….
The background of Trump v. United States needn’t be rehearsed at length (though some of the details will become important when we sort through what specific alleged conduct may remain prosecutable). After he left office, former President Trump was indicted by a Special Prosecutor appointed by Attorney General Merrick Garland on four counts relating to his conduct following the November 2020 election, while he was still in office. The Special Prosecutor alleged that Trump conspired (with various individuals within and outside the Executive Branch) to overturn the election by spreading knowingly false claims of election fraud in order to obstruct the certification of the election results. Trump moved to dismiss the indictment based on an argument that he (like all Presidents) is absolutely immune from criminal prosecution for any actions performed within the “outer perimeter of his official responsibilities,” which included all of the conduct alleged in the indictment. The District Court denied Trump’s motion and the D.C. Circuit affirmed on an interlocutory appeal, holding that former Presidents are not immune from prosecution for acts taken while in office. Neither lower court addressed whether the indicted conduct involved official or nonofficial acts.
In its final decision of the term, the Supreme Court vacated the judgment of the D.C. Circuit and remanded for further proceedings. Writing, mostly, for the six conservative Justices (albeit with significant reservations from Justice Barrett, discussed below), the Chief began by observing that this “is the first criminal prosecution in our Nation’s history of a former President for actions taken during his Presidency.” The Court, he said, was therefore called upon to consider “whether and under what circumstances such a prosecution may proceed,” mindful that an endorsement of immunity is not an endorsement of the immunized act, and that the Court must “focus on the enduring consequences [of its decision] upon the balanced power structure of our Republic” and not the merits of this particular prosecution or its target.
Though the Constitution does not say anything explicitly about Presidential immunity, the Chief explained that its “structure of separated powers” demands that certain actions taken by the President be unreviewable by the other branches of government. The nature of executive power, Roberts, said, requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. The degree of immunity, he explained, would depend on the nature and source of the power exercised. Invoking Justice (Robert) Jackson’s famous Youngstown Steel concurrence, the Chief concluded that, where the President exercises his “conclusive and preclusive” power—that is, power stemming directly from Article II of the Constitution—his actions cannot be reviewed by Congress or the courts; a president is “absolutely immune” from criminal prosecution for conduct within his exclusive sphere of authority.
However, the Chief noted, not all “official” acts fall within this exclusive sphere. In Jackson’s “zone of twilight,” where the President and Congress exercise concurrent authority, the President is not entitled to absolute immunity. Here, the Chief alluded to two immunity decisions involving President Richard Nixon. In Nixon v. Fitzgerald (1982), the Court held that the President is entitled to “absolute immunity from damages liability predicated on his official acts.” That was necessary, the Burger Court reasoned in order to avoid “diversion of the President’s attention during the decision making process caused by needless worry as to the possibility of damages actions stemming from any particular official decision.” But in United States v. Nixon (1974), the Court rejected the President’s claim of an “absolute privilege” to refuse to turn over White House tapes in response to a special prosecutor’s subpoena, though it recognized a “presumptive privilege” for Presidential communications. Drawing on these threads, and recognizing similar policy concerns, Chief Justice Roberts concluded that, when a President acts within the “outer perimeter of his official responsibility,” he is entitled “at least a presumptive immunity from criminal prosecution.” To rebut that presumption, the Government would have to show that prosecuting an official act would pose no “dangers of intrusion on the authority and functions of the Executive Branch.” The Chief provided little additional explication on how the presumption of immunity might be rebutted in Trump’s case or any other.
Finally, Chief Justice Roberts confirmed that, “[a]s for a President’s unofficial acts, there is no immunity.” A President is not entitled to immunity simply by virtue of being President; rather, the “justifying purposes” of presidential immunity are “to ensure that the President can undertake his constitutionally designated functions effectively, free from undue pressures or distortions.” Those purposes are not served by extending presidential immunity to unofficial acts, which would include acts taken before or after an individual holds the office. (At this point, Presidential prosecutors in New York—where Trump was convicted of conspiring to cover up an affair before taking office—and Florida—where Trump has been charged with mishandling classified documents and lying to investigators after leaving office—might have breathed a sigh of relief; though other parts of the Court’s opinion, and Justice Thomas’s concurrence, could impact those cases.)
Having laid out the three “zones” of Presidential power and their corresponding degrees of immunity, Chief Justice Roberts proceeded to “offer guidance” on how the lower courts might determine where President Trump’s alleged criminal acts fall within these zones. The first step, he said, is to assess the President’s authority for taking a given action, without taking account of his motives. With that in mind, some of the actions charged in the indictment—including, in particular Trump’s discussions with the Acting Attorney General and attempts to leverage the Justice Department’s power to influence States to submit fraudulent slates of electors—would “plainly” implicate the President’s “conclusive and preclusive authority, since the Executive Branch has “exclusive authority and absolute discretion” to decide what crimes to investigate and prosecute. Other allegations concerning the President’s attempt to persuade Vice President Pence to refuse to certify the election results would implicate official duties, but it remained to be seen whether the presumption of immunity that attaches to all official acts could be rebutted on remand. Finally, the Court did not resolve whether Trump’s interactions with persons outside the Executive Branch, including state officials and private parties, constituted official or unofficial conduct, leaving that question to the lower courts on remand.
In a brief, but significant, portion of the opinion joined only by Justices Thomas, Alito, Gorsuch, and Kavanaugh, the Chief rebuffed the Government’s argument that it could present evidence relating to Trump’s official conduct—even if Trump is immune from being held criminally liable for those acts. “That proposal,” the Chief retorted, “threatens to eviscerate the immunity we have recognized,” as “[i]t would permit a prosecutor to do indirectly what he cannot do directly—invite the jury to examine acts for which a President is immune from prosecution to nonetheless prove his liability on any charge.” While the Court has previously endorsed the idea that “evidentiary rulings” and “jury instructions” can adequately prevent juries from drawing improper inferences, the Chief here concluded that “[t]he prosaic tools on which the Government would have courts rely are an inadequate safeguard against the peculiar constitutional concerns implicated in the prosecution of a former President.” Thus, assuming some of Trump’s alleged misconduct is prosecutable, the Special Counsel will not be permitted to use other, immune, conduct as supporting evidence.
Having laid out his affirmative case for tiers of immunity, the Chief turned to the competing arguments advanced by the parties and the dissents. Trump, he insisted, had asserted a far broader immunity than that recognized by the Court, contending that a president is absolutely immune from any prosecution unless he is first impeached and convicted. (On the flip side, however, the Court’s opinion provides more immunity in that it precludes prosecution for core official conduct even if a President is impeached and convicted.) The Constitution draws no connection between impeachment and immunity, the Chief observed, and neither history nor the separation of powers supports the idea that a former president could only be prosecuted if he had first been impeached and convicted. As for the Government (and DC Circuit), its stilted view of immunity would cause Presidents to be “unduly cautious in the discharge of [their] official duties.”
And the dissenting opinions, Roberts concluded, “strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today.” While Justice Sotomayor’s principal dissent cited textual evidence and historical sources suggesting that the framers believed Presidents could be criminally prosecuted, the Chief responded that these data points were far too fragmentary and inconclusive to override the arguments that “arise from the Constitution’s separation of powers and the Judiciary’s historic understanding of that doctrine.” The Chief rejected the dissenters’ repeated assertions that the Court had rendered the president “above the law,” stressing that “[l]ike everyone else, the President is subject to prosecution in his unofficial capacity. But unlike anyone else, the President is a branch of government, and the Constitution vests in him sweeping powers and duties.” In other words, he can be prosecuted for basically all of the same stuff we can be prosecuted for. He just can’t be prosecuted (at least presumptively) for the special stuff that he gets to do as a result of being president. And while the dissents warned of a “future where the President ‘feels empowered to violate federal criminal law,” the Chief responded with “the more likely prospect of an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next.” (As we’ve pointed out before, this is the strange case in which both sides seemed to be nodding at the same personification of their ”parade of horribles”: Would it be worse to recognize immunity and embolden Donald Trump to violate federal law with impunity? Or not to recognize immunity and embolden a 47th President Trump to sic the Justice Department on the 46th President?)
The Chief closed with a fairly direct entreaty for readers to recognize the Court’s opinion as one addressing “a question of lasting significance,” and not “transient results.” “[U]nlike the political branches and the public at large,” the Chief stated, “we cannot afford to fixate exclusively, or even primarily, on present exigencies.”
Justice Barrett joined in the Court’s judgment, and in most of the Chief’s opinion, albeit based on her “understand[ing]” that the opinion is “consistent” with views laid out in her brief—and potentially very important—concurrence. To Barrett, what the Court describes as “immunity” is really “short-hand 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.” As she noted, all of the Justices (and the Government) appeared to agree that some prosecutions relating to a President’s official conduct would be unconstitutional, and there is ample precedent recognizing that interlocutory review is sometimes necessary to safeguard important constitutional interests. She agreed with the majority that a President can never be held criminally liable for conduct within his “conclusive and preclusive” authority but stressed that that is a very narrow zone of immunity (though it would include President Trump’s supervision and removal of high-ranking DOJ officials). And she agreed that there is no constitutional protection for a President’s private conduct (which, she noted, would include, President Trump’s alleged attempt to organize alternative slates of electors, since a President has no legal authority to influence how States appoint electors). For actions that are authorized, and therefore “official,” but not within the President’s “exclusive and preclusive” authority, Justice Barrett would take a two-step approach: First, determine whether the relevant criminal statute even covers the alleged conduct when undertaken by the President, as not every broadly worded statute does. If it does, then the prosecution may proceed only if applying the statute to the President’s conduct “poses no danger of intrusion on the authority and functions of the Executive Branch.” Justice Barrett noted that this approach is not so far from that suggested by the Government, except that she would allow interlocutory review of any District Court decision permitting a charge to proceed.
In an interesting act of statesmanship, Justice Barret stated that she “underst[oo]d most of the Court’s opinion to be consistent with these views.” The exception, she noted, was with respect to the majority’s holding that the Government cannot introduce protected conduct as evidence in a criminal prosecution of a President, with which she disagreed. It will be interesting to see on remand whether the lower courts accept Justice Barrett’s implicit invitation to read the majority opinion through her lens.
Justice Thomas also filed a concurrence, which may be of even more significance in the Special Prosecutor’s other criminal case against the former President. Justice Thomas agreed fully with the Chief’s opinion but wrote separately “to highlight another way in which this prosecution may violate our constitutional structure.” The Constitution requires that Congress establish federal offices “by law.” Here, the Attorney General purported to appoint a private citizen as Special Counsel, but Thomas was “not sure that any office for the Special Counsel has been ‘established by law.” The statutes that the Attorney General relied upon when appointing the Special Counsel, Thomas argued are “of a general nature” and do not “appear[] to create an office for the Special Counsel, … especially not with the clarity typical of past statutes used for that purpose.” Notably, no other Justice (not even frequent bedfellows Alito and Gorsuch) joined Thomas in expressing this skepticism. But you can bet that the District Judge presiding over the Special Counsel’s classified-documents case in Florida will be giving the concurrence a close read.
Finally, the dissents. Justice Sotomayor penned the principal dissent, joined by Kagan and Jackson. In her view, the Court’s decision “reshapes the institution of the Presidency,” and “makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.” She accused the majority of “invent[ing] an atextual, ahistorical, and unjustifiable immunity” based solely on its own misguided view that the President should be able to take “bold and unhesitating action,” even if criminal. In a dig at her originalist and textualist antagonists, Justice Sotomayor pointed out the majority’s “careful assessment of the scope of Presidential power under the Constitution” “does not involve the Constitution’s text,” which contains no provision for immunity from criminal prosecution for Presidents, even while it does provide some immunity for legislators through the Speech and Debate Clause. On the contrary, she noted, the Impeachment Judgment Clause clearly contemplates that Presidents can “nevertheless be held liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” While the majority suggested that the clause is not addressed to “official acts,” Justice Sotomayor pointed out that it expressly contemplates “Bribery,” which almost by definition implicates official acts. Sotomayor likewise called out the lack of historical support for the majority’s position, noting that the Framers insisted that the President be “liable to prosecution and punishment in the ordinary course of law” (to quote Federalist No. 69) precisely to distinguish that democratic office from the monarchy and its King who “can do no wrong.” As Sotomayor pointed out, in the absence of text and history, the majority relied almost entirely on Nixon v. Fitzgerald (1983). But she maintained that even the test from Fitzgerald does not support its holding, because immunity is not “required to safeguard the independence and functioning of the Executive Branch,” as the (current) Executive Branch has itself insisted, through the Solicitor General.
Having picked apart the historical and textual basis for the Court’s decision, Justice Sotomayor proceeded to lambast its practical consequences. The purported distinctions between absolute immunity (for core functions), presumptive immunity (for all official acts), and no immunity (for private acts) was meaningless, in Sotomayor’s view, because no one has ever questioned that a President can be prosecuted for private acts, and the majority’s holding that the presumption of immunity for official acts can only be overcome if a prosecution would pose “no dangers of intrusion on the authority and functions of the Executive Branch” effectively amounted to absolute immunity. And the Court’s gratuitous insistence that “acts for which the President is immune must be redacted from the narrative of even wholly private crimes committed while in office,” means that any prosecution of a former President, even for unofficial acts, will be “deprive[d] … of any teeth.” Justice Sotomayor further complained that the majority had gone out of its way to declare certain conduct in the Special Counsel’s indictment immune (e.g., Trump’s interactions with Justice Department officials) while not declaring any conduct prosecutable (meaning that it is likely Trump will take another appeal of any decision concluding that some of the charged conduct can be prosecuted).
Justice Sotomayor closed with a stark prediction. “Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop. With fear for our democracy,” she dissented.
Justice Jackson “agree[d] with every word of [Sotomayor’s] powerful dissent,” but filed separate opinion to “explain … the theoretical nuts and bolts of what, exactly the majority has done today to alter the paradigm of accountability for Presidents of the United States.” As she explained, “our Government has long functioned under an accountability paradigm in which no one is above the law; an accused person is innocent until proven guilty; and criminal defendants may raise defenses, both legal and factual, tailored to their particular circumstances, whether they be Government officials or ordinary citizens.” The Court’s decision, Jackson maintained, “breaks new and dangerous ground,” departing “from the traditional mode of individual accountability” and substituting a “Presidential accountability model that creates immunity—an exemption from criminal law—applicable only to the most powerful official in our Government.” Justice Jackson proceeded to point out the ways in which this “Presidential accountability model” will be difficult to administer and otherwise harmful. The majority, she concluded, had “put [its] trust in our Court’s ability to prevent Presidents from becoming Kings through case-by-case application of the indeterminate standards of their new Presidential accountability paradigm.” While she expressed “hope that they are right,” she warned that the “risks (and power) the Court has now assumed are intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms.”
So, what exactly emerges from the 119 pages of opinions in this case? Well, the Court has held that some of the conduct alleged in the Special Counsel’s indictment (particularly that involving Trump’s interactions with the DOJ) are absolutely immune, so those will presumably be dismissed in short order. For the majority of conduct involving official, but non-core conduct, the Special Prosecutor will have the opportunity to rebut the presumption of immunity by demonstrating that prosecuting those acts would not intrude on the authority and functions of the Executive Branch. But it’s not clear what exactly that means, and one can imagine the District Court or the D.C. Circuit having a different view on the rebuttal than the Supreme Court in a subsequent appeal. The Court did hold that unofficial conduct can be prosecuted, but the majority did not actually hold that any particular allegations or charges involved unofficial conduct. While it’s fair to assume that a majority would agree that the charges concerning the President’s communications with private parties, and efforts to influence state electors, involved private conduct, by not so holding, the Court gifted Trump with another opportunity to take an interlocutory appeal of any decision permitting those charges to proceed. And in holding that evidence concerning immune conduct cannot be used to support charges involving nonimmune conduct, the Court has significantly limited the ability of the Special Prosecutor to prove his case. (The evidentiary holding may also be relevant to the New York hush-money case. Though most of the conduct in that case was private, the state court permitted evidence of communications that took place after Trump was in office. The court will now have to conclude whether that evidence should have been excluded based on this decision.) The bottom line is that there will be much more litigation in the lower courts, and likely at least one more appeal, before Trump can be tried.
With that, our coverage of the Court’s OT23 term comes to a close. So as in past years, we’ll take this opportunity to thank our ever-dependable roster of colleagues who helped us summarize this term’s decisions: Aaron Bayer, Anjali Dalal, Ariela Anhalt, Armando Ghinaglia, Emmett Gilles, Evan Bianchi, Gautam Rao, James Allison Jeff Babbin, Jonathan Freiman, Kim Rinehart, Nate Guevremont, and Sean Vallancourt. We’d also like to thank our marketing teams, particularly Christine Stackhouse and Kathy Glass, as well as our IT teams, for managing the logistics of posting and maintaining our updates. We couldn’t have done it all without you all.