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The Supreme Court’s immunity decision sidesteps history

Those who framed the Constitution agreed that unchecked presidential power was a terrible idea.

- July 4, 2024
The Supreme Court building in Washington, D.C.
(cc) Thomas Hawk, via Flickr.

“No one is above the law in our system and that includes the president. The president is fully bound by the law, the Constitution and statutes.”

That sentiment is a staple of inspirational rhetoric about American exceptionalism – indeed, considered so true as to be trite. Presumably John Roberts thought so when he said just that in 2005, as he sought to win confirmation to the Supreme Court against the backdrop of George W. Bush’s forays into presidential imperialism.

In the Supreme Court’s new decision on presidential immunity, Trump v. United States, Chief Justice Roberts still insists that “the President is not above the law.” Yet he does so after spending 40 pages explaining that the president is not just a person but “a branch of government” – and thus, in fact, above the law. The seeming contradiction is bridged by some circular reasoning of the “defining deviancy down” variety. Justice Clarence Thomas states it concisely in his concurring opinion: The president is not above the law because, “as the Court explains, the President’s immunity from prosecution for his official acts is the law.”

The Supreme Court is right that presidents have powers Congress can’t infringe upon. But that doesn’t mean those powers can never be exercised in a criminal fashion. Indeed, the ruling goes well beyond setting a “core” of presidential autonomy to lay out a vague but expansive set of principles overextending immunity and undermining accountability. 

As a result, it may turn out former President Richard Nixon was right after all. “When the president does it,” he famously told an interviewer in 1977, “that means that it is not illegal.”

What is immune? What is illegal?

This decision either marks the end of American democracy or a rejuvenation of its fundamental principles, depending on one’s social media feed. What does the July 2024 ruling actually say?

The majority divide presidential actions into three categories:

(1) official actions taken within the president’s “core constitutional powers” – any such action is completely immune from criminal prosecution. 

(2) official actions that don’t flow from core powers, but “within the outer perimeter” of the president’s official responsibilities. Such actions receive a “presumptive immunity,” but could be prosecuted under some circumstances.

(3) “unofficial,” private acts – these remain subject to prosecution.

In practice, as discussed below, much depends on what actions actually fit into each category. The core powers, the Supreme Court says, are “conclusive and preclusive” – they are given only to the president and preclude action by other branches. This includes the veto and the pardon power, which are actually in the text of the Constitution. Roberts also specifies the power to fire executive officials, which is not – but which is fundamental to the notion of the president as “unitary executive,” someone who, in Roberts’ framing, personally “is a branch of government.” Another “preclusive” authority – one the court recently granted to presidents in the 2015 Zivotovsky case – deals with matters of diplomatic recognition, based on the president’s constitutional ability to “receive ambassadors and other public ministers.” 

How far the “core” zone extends past that is hard to know. Would it include war powers, treaties, executive directives? Justice Ketanji Brown Jackson, in dissent, argues that “the actual metes and bounds of the ‘core’ Presidential powers are really anyone’s guess” at this point. And Justice Sonia Sotomayor’s dissent fears a “considerably larger sphere of conduct than the narrow core… the Court previously has recognized.” 

The ruling also leaves undefined the second-tier taxonomy of official responsibilities – and thus which acts receive a presumption of immunity. As Roberts notes (quoting himself in an earlier case, something judges share with academics), “there is not always a clear line between [the President’s] personal and official affairs.” Is conferring with state officials about why they should overturn election results legally distinguishable from conferring about Medicaid waivers? Is a speech to a ready-to-hang-the-vice-president mob legally distinct from addressing a convention of chambers of commerce? Maybe, but maybe not. The specifics are left for lower courts to work out. Certainly the majority seems open to taking a Sharpie to the map to expand that “perimeter of official responsibilities”: as it notes, any actions that are “not manifestly or palpably beyond [his] authority” would be inside it.

That wider “perimeter” comes with a high fence, too. The presumption of immunity can only be breached if doing so poses “no ‘dangers of intrusion on the authority and functions of the executive branch.’” 

Most of that phrase comes from the 1980s Fitzgerald case that protected the president from liability for monetary damages in a civil case stemming from decisions while in office. But Fitzgerald itself set up a test balancing the “danger” to the executive against the weight of the public interest in allowing the suit. As Sotomayor notes, the majority fixes one side of the scale to zero: Presumably any good lawyer can argue that “no” means literally, well, “no.” Still, in several places justices did suggest that test could be met. For instance, sanctioning Trump’s actions in Arizona, or his pressure on Mike Pence regarding electoral vote certification proceedings, would not undermine the ability of future executives to function effectively. 

The size of the last category, unofficial acts, would of course depend on what acts are deemed official. Presumably a president stealing cold medication or hair dye from a Pennsylvania Avenue CVS would still be on the “unofficial” side of the fence. But “in dividing official from unofficial conduct,” Roberts held, “courts may not inquire into the President’s motives.” If it is a power the president has (e.g., issuing a pardon), prosecutors can’t ask whether that action was taken with criminal intent (e.g., in the knowledge a hefty payoff was forthcoming.) This greatly expands the practical scope of the immunity granted. Further, evidence about official acts can’t be used even when prosecuting an unofficial act – this, Roberts says, would be a backdoor way of criminalizing the official act. But as Justice Amy Coney Barrett points out, such an evidentiary rule readily deletes the “quo” from a case involving a quid pro quo.

Why immunity?

The majority argues that immunity is required by “the separation of powers principles we have outlined,” and that by contrast the dissenters rely on “ignoring the Constitution’s separation of powers.” But the separation of powers that emerges in the decision is indeed a bare outline. The ruling touts Alexander Hamilton’s take in Federalist 70 on the need for presidential “vigor” and for “energy in the executive”; it largely bypasses Federalist 69, which reassured potential constitutional ratifiers that the presidency was not inherently powerful and would be well-checked by the other branches (and even “amenable to personal punishment and disgrace”). 

Indeed, Hamilton holds that a president out of office “would afterwards be liable to prosecution and punishment in the ordinary course of law.” The majority do note this last phrase, but only in the context of (rightly) rejecting Team Trump’s bizarre claim that impeachment and removal from office is required for any criminal prosecution of a former president. But one of the original members of the U.S. Supreme Court, James Iredell, promised the North Carolina ratifying convention in July 1788 that “If the President does a single act by which the people are prejudiced, he is punishable himself, and no other man merely to screen him…. If he commits any crime, he is punishable by the laws of his country, and in capital cases may be deprived of his life.” 

While today’s justices don’t directly quote Trump attorney John Sauer’s claim in oral arguments that “without immunity, there can be no presidency,” the ruling channels that sentiment. Immunity, the Supreme Court says, is required if the president is to undertake “bold and unhesitating action,” behave “forcefully,” or “fearlessly and fairly,” or for that matter “boldly and fearlessly.” This seems a harsh judgment on all previous presidents. Some of them, surely, acted boldly (etc.) without any reason to expect blanket immunity from criminal proceedings. Without Gerald Ford’s pardon, Nixon would have been prosecuted; Bill Clinton, for his part, accepted a plea deal.

More importantly, the adverbial torrent assumes a very rigid separation between the branches of government. Problematically for those seeking the “Framers’ intent,” that diverse group had diverse opinions about most things. But they were united around the notion that unchecked power was a terrible idea, and presidential power most of all. Certainly the Supreme Court now envisions a much larger zone of “preclusive” autonomy than did the delegates to the Constitutional convention. (Note that when Hamilton discusses the power of diplomatic recognition the court elevated in Zivotovsky, he called it “more a matter of dignity than of authority.”)

Indeed, the Supreme Court’s view (as Jamelle Bouie frames it) is that checking other branches “demands unchecked authority.” Yet in Federalist 47, James Madison criticizes the notion that “the legislative, executive and judiciary departments ought to be separate and distinct.” After all, if they were wholly distinct, they would be unable to limit each other’s oversteps. Indeed, he continues in Federalist 48, “unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained.” 

As Richard Neustadt famously put it, “The constitutional convention of 1787 is supposed to have created a government of separated powers. It did nothing of the sort. Rather, it created a government of separated institutions sharing powers.”

None of this is to say that presidents have no executive autonomy. They do need the “competent” (not commanding) powers Hamilton envisioned in Federalist 70 as sufficient to fend off the other branches of government. Indeed, it is reasonable to think that presidents could take actions that are impeachable, but not indictable – that one could in fact fire an executive official for reasons that constitute “the abuse or violation of some public trust” (Hamilton again) but which are not contrary to the statute books. Presidential abuse of power is often political, not purely legal – inflicting “injuries done immediately to the society itself” (both Trump impeachments seem to fall largely in that bucket). Enforcing that side of the separated institutions sharing powers would require the kind of institutional pride that has been distinctly absent from Congress in recent years. 

What happens now? 

The ruling requires lower courts – most immediately, Judge Tanya Chutkan of the D.C. District Court – to evaluate the specifics of the Trump indictments before them. Does the behavior charged fit within the core elements of presidential power, or involve other official duties? Which of Trump’s actions can no longer be used in evidence, as a result? 

It seems likely that many elements of the cases against Trump could move forward – but not fast. The immediate upshot of the decision, then, is to push Trump’s trials past election day. Were Trump to win in November, of course, in January 2025 the prosecutions would shut down. The January 6 case in Georgia is also directly affected (though already delayed), and there are spin-off effects, too. Though it is hard to see the pre-presidential fraudulent manipulation of business records as an official act, Trump’s sentencing for his New York conviction has already been pushed back to September to assess the ruling’s implications for that case.

In the longer term, the impact of the decision will depend on definitional detail: What will the various categories of presidential acts contain in practice? Legal pundits are already debating whether Richard Nixon’s actions during Watergate (broadly conceived) would have received immunity under the decision, or whether the “assassination by SEAL team” hypothetical raised during the case is plausible. Looking forward, how will the opinion affect the legal justifications the White House routinely commissions for controversial presidential actions? The strong version of unitary executive theory on display in the ruling treats executive branch personnel as a mere appendage of the president – does that make those personnel immune by extension? In any case it appears that presidents could pardon anyone who committed a crime on their behalf without any fear of prosecution.

Ultimately, the courts – and likely the Supreme Court itself – will need to apply the broad categories of this decision to specific actions. Jackson’s dissent observes that this will boost judicial authority (a recurring theme in recent opinions); “a majority of this Court, applying an indeterminate test,” she writes, “will pick and choose which laws apply to which Presidents…” 

As noted, there are core presidential authorities upon which Congress can’t intrude. But even those can be used corruptly, and in any event the facts of the current case barely implicate them. The question at hand was time-bound, tied to specific actions by a specific president. One “path not taken,” law professor Bruce Ackerman writes, could have forged another majority to support a narrower ruling. Instead, the Supreme Court decided it needed to write “a rule for the ages,” as Justice Neil Gorsuch said in oral argument. 

Finally, then, the decision’s practical impact will also depend on how often these cases actually come up. The majority stressed that it would impose a “counterproductive burden” if “a former President’s official acts are routinely subjected to scrutiny in criminal prosecutions.” But it never says why this would be a common occurrence. After all, the question has never come up before. So the specter of constant legal persecution seems like, well, “fear-mongering on the basis of extreme hypotheticals” (as Roberts accused the dissenters of doing). 

Instead, the court assumed that extreme would be routine, an extrapolation from the Trump presidency that does the Constitution, the country, and even the Supreme Court itself no favors. Perhaps Justice Oliver Wendell Holmes provided the better guide: “great cases,” he wrote in 1904, “… make bad law.”