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The Immunity Con

Michael M. Santiago/Getty Images

Donald Trump giving a statement after the eighth day of his trial for falsifying business records, New York City, April 26, 2024

On April 25 the Supreme Court heard oral arguments in Trump v. United States, on whether a former president enjoys immunity from prosecution for crimes committed while in office. The Court did not need to accept the case; it could easily have passed on former President Donald Trump’s extraordinary claims of blanket immunity and allowed his trial on federal felony charges for attempting to overthrow the 2020 election to go forward. But since a federal grand jury in Washington indicted him over the election, the Court has done everything possible, as I argued recently in these pages, to delay the case from being brought to trial: first by refusing to rule expeditiously on the immunity motions back in December, then by taking the case in February, then by setting oral arguments for the very last day on its schedule. As a result, even before the recent oral arguments, it appeared likely that Trump would not be tried on the election charges until, at best, shortly before voters go to the polls in November. 

This sluggishness was reason enough to suggest that the Court was protecting Trump. But it was also possible, I noted, that the conservative justices were thinking of overruling lower federal court judgments and granting Trump—and all future presidents—some form of immunity from criminal prosecution. Even many skeptical commentators did not expect the Court to stoop low enough to take the immunity case seriously, let alone to rule at least partially to Trump’s advantage. 

What was once unthinkable is now almost certain. The conservative justices, as I feared they might, concentrated their questions and comments heavily on what constitute “official” presidential actions. A 1982 Court ruling declared such actions immune from civil litigation. The Trump attorneys’ central argument has been that they are immune from criminal prosecution as well. By pondering what, exactly, is an official presidential action, the conservative justices signaled that they were entertaining that contention. This alone carried an implicit rejection of the government’s claim that no citizen, including the president, stands above the criminal law.

Nowhere does the Constitution mention or imply that the president enjoys immunity from criminal prosecution for official acts. Earlier commentators and jurists have denied that such immunity exists; the justices who granted presidents civil immunity in 1982 made it crystal-clear that they had no intention of granting criminal immunity. Now and then during the arguments, the conservative justices seemed to touch on the uninformed idea that presidents enjoy a presumption of criminal immunity, as in the case of an obstruction of justice stemming from a presidential pardon or drone strikes abroad that kill American citizens. As the Justice Department’s lawyer, Michael Dreeben, took pains to explain, the Constitution does indeed allocate a “small core” of official acts specifically to the president for which he is immune from prosecution, such as the power to recognize foreign governments, to veto congressional legislation, to make appointments, and to pardon. Outside of this tiny set, though, as the US District Court for the District of Columbia and the US Court of Appeals for the District of Columbia Circuit affirmed, there has never been presidential criminal immunity of any kind, formal or presumed.

Inventing such immunity would seriously hinder if not kill Special Counsel Jack Smith’s attempt to bring Trump to justice for using his “official” position to leverage his “private acts” by staging an attempted coup d’état. Depending on the definition of “official” acts, many if not most of the charges in the federal indictments might disappear as violations of presidential immunity, exactly as Trump’s attorneys demanded. To sort out which of the charges should be dropped, the Court could send the case back to the D.C. Court of Appeals. Indeed Chief Justice John Roberts suggested just such a remanding, on shockingly dishonest grounds.

Were the Court to grant the president a form of criminal immunity, it would also dramatically alter the office of the presidency, giving leeway to future criminal behavior on the rationale that failing to do so would “chill” a president’s ability to perform the job. Even Richard Nixon, in trying to shield himself behind executive privilege during the Watergate crisis, wasn’t quite brazen enough to claim that a former president could not be charged for having committed a crime. That Trump is so brazen comes as no surprise. That the John Roberts Court may reward that brazenness by tampering with our constitutional foundations would be more surprising were it not for this Court’s outrageous recent rulings.

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At the center of the case is a tendentious reading of the Court’s 1982 ruling in Nixon v. Fitzgerald. In that case, the Court decided that a president was entitled to “absolute immunity” for civil damages based on anything connected with his official duties or “the outer perimeter” of those duties. The Court issued a split decision, but none of its members had argued “that the President is immune from criminal prosecution in the courts,” as Justice Byron White observed in his dissent. “Nor,” he continued, “would such a claim be credible.”

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Last fall, however, in order to delay Trump’s trial on election interference, his lawyers submitted, among many motions, one asserting that the Fitzgerald ruling implied that the president was immune from criminal as well as civil charges concerning official acts. The motion stressed that the president did not stand completely outside the rule of law. If he were impeached and removed from office by Congress, he might then be indicted for the same offenses. But short of that, the argument went, he would be immune. Since the Senate failed to convict Trump over the January 6 insurrection, and since his lawyers contended that his alleged crimes involved his exercise of official duties, the motion insisted that the charges against him be dropped.

Federal judges had all but laughed these arguments out of their courtrooms. Judge Tanya Chutkan of the D.C. District Court observed that the vast preponderance of evidence from the founding era indicated that a president, unlike a monarch, would be subject to prosecution for criminal activity. She quoted a 1976 ruling in which the Court maintained that it had “never suggested that the policy considerations which compel civil immunity for certain governmental officials also place them beyond the reach of the criminal law.” She carefully disassembled the claim that a former president could only be prosecuted after impeachment and removal as contravening the Constitution’s “plain meaning, original understanding, and common sense.” A three-judge panel of the D.C. Court of Appeals agreed. During Trump’s second impeachment trial, the panel recalled, his own counsel had argued that the federal courts would be the appropriate vehicle for the “investigation, prosecution, and punishment” of a former president, offering as they did “an investigative process…to which no former officeholder is immune.”

Yet it didn’t take long during oral arguments for the conservative justices to hint that they might overturn the Court of Appeals decision. Some of the justices seemed already persuaded by the unprecedented claim that anything falling within “the outer perimeter” of official presidential acts was safe from criminal prosecution. Three minutes into the proceedings, Justice Clarence Thomas asked Trump’s lawyer, D. John Sauer, “How exactly would we determine what an official act is?” (Sauer pointed to standards laid out in Fitzgerald.) Much of what followed involved colloquies over what constituted official acts, discussed in a string of hypothetical scenarios. The longer the proceedings dragged on, the more the conservatives appeared to regard as self-evident the basic premise of Trump’s lawyers’ case.

In one exchange with Sauer, Justice Brett Kavanaugh tried to clarify matters. When the Founders declared that “the president’s not a king,” he suggested, they merely meant that “the president is subject to prosecution for all personal acts just like every other American.” Official acts were another matter entirely. (By that logic the president would be very much a king—above the criminal law—when performing acts considered official.) During arguments from Dreeben, the justices got hung up on the distinction between the president’s constitutionally defined core powers and his official powers—all of which strayed off-point, since the core powers are clearly defined and limited. By the end of two hours and forty minutes, the idea upheld by the lower courts that all presidential actions outside the core powers are liable to criminal prosecution had been not so much refuted as paved over. The main issue lay in determining which presidential acts counted as public and which as private.

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The liberal justices called attention to some of the implications of granting the president criminal immunity. If the president ordered the assassination of a political rival, Justice Sonia Sotomayor wanted to know, would that be an official act and thus immune from prosecution? “That could well be,” Sauer replied. “How about if a president orders the military to stage a coup?” Justice Elena Kagan asked. “If one adopts, for example, the Fitzgerald test that we advance,” Sauer said, “that might well be an official act.” Nothing seemed too great, including ordering the nuclear destruction of the world, to escape immunity as an official act—unless, of course, as Sauer kept reminding the justices, the president had been impeached and removed from office for it.

Justice Ketanji Brown Jackson did the most to expose the falsity of the arguments’ guiding presumptions. “Why would we have a situation,” she asked Sauer, “in which we would say that the president should be making official acts without any responsibility for following the law?” Sauer claimed that the president did have responsibility but then retreated into Fitzgerald, which Jackson reminded everyone was a civil case. Then she repeated the central point: “When we’re talking about criminal liability, I don’t understand how the president stands in any different position with respect to the need to follow the law as he is doing his job than anyone else.” She continued:

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You seem to be worried about the President being chilled. I think that we would have a really significant opposite problem if the President wasn’t chilled. If someone with those kinds of powers, the most powerful person in the world, with the greatest amount of authority, could go into office knowing that there would be no potential penalty for committing crimes, I’m trying to understand what the disincentive is from turning the Oval Office into the seat of criminal activity in this country…. Once we say, “No criminal liability, Mr. President, you can do whatever you want,” I’m worried that we would have a worse problem than the problem of the president feeling constrained to follow the law while he’s in office.

It was a welcome rebuttal of the tortured refrain that the nation has prospered because presidents haven’t had to worry about criminal prosecution—a thought that did not occur to Nixon when he took his pardon from Gerald Ford.

After Jackson’s comments, the conservative justices clouded the hearings again. Their subsequent questioning dwelled on legal technicalities about the difference between private and official acts; only Dreeben acknowledged that Trump’s attempted coup combined both. The Court is highly unlikely to set a standard on the vexing question of distinguishing a president’s public and private actions, although with this court anything is possible. But as Justice Jackson made clear, that question has arisen only because the Court has evidently decided, against the preponderance of history and precedent, that there is such a thing as presidential criminal immunity for official acts to begin with.

At the end of the arguments, the enormity of what had just happened began to sink in: for the first time in American history, the supreme judicial authority was parsing how much criminality to permit the chief executive. To be sure, the Court is unlikely to endorse the kind of blanket immunity that Trump’s lawyers have asked for. But if the arguments are indicative, it will still place the president, so long as he is acting in that capacity, outside the rule of criminal law. That would amount to an attack on the Constitution still more fateful than the Court’s disfiguring of the Fourteenth Amendment this past March. At the very least, the Court will likely follow Chief Justice Roberts’s suggestion and remand the case back to the Court of Appeals to determine which charges in the federal indictments can be prosecuted as “official” or “private,” which would impose irremediable, quite possibly fatal delays on Trump’s federal trial for election interference.

Roberts’s performance at oral arguments was particularly dishonorable. At one point, in railing against the Court of Appeals’ decision and explaining why the case might need to be remanded, he plucked a single sentence out of context: the judiciary can prosecute a former president for official acts “because the fact of the prosecution means that the former president has allegedly acted in defiance of the laws.” To Roberts, this was both “the clearest statement of the court’s holding” and worryingly “tautological.”

In fact the sentence in question was in reference to another decision, the landmark case of Marbury v. Madison, which set a precedent regarding the separation of powers doctrine. The Court of Appeals’ point, far from tautological, was that this precedent was irrelevant. Roberts left out the sentence that contained the lower court’s holding: “Here, former President Trump’s actions allegedly violated generally applicable criminal laws, meaning those acts were not properly within the scope of his lawful discretion; accordingly, Marbury and its progeny provide him no structural immunity from the charges in the Indictment.” It was a blatant example of an “originalist” justice contradicting the meaning ascribed to a source in order to achieve desired results. Roberts will surely get away with this sleight of hand. The chief justice has expressed grave concerns about the legitimacy of the Court, but he himself is undermining that legitimacy.

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The most important duty of the president laid out in the Constitution, apart from those explicated in the oath of office, appears in Article II, section 3, which stipulates that he “shall take Care that the Laws be faithfully executed.” Now the Supreme Court is poised to allow that for the president to execute the laws faithfully, free of being “chilled,” he must be authorized to violate those laws in his official capacity, as he sees fit.

The originalist justices lining up behind that decision are apt to cite James Madison, George Washington, and Benjamin Franklin to cover their ideologically driven decisions. Sauer followed that originalist lead, revealing his ignorance of American history in the process. More than once, for example, he alluded to what he called Washington’s concern about “the massive risk of factional strife,” as if to suggest that the founding generation was concerned not with prosecuting presidents but with suppressing partisanship. Sauer was evidently referring to Washington’s Farewell Address of 1796, which indeed warned about factional strife. But Washington also powerfully alerted the nation to the danger of precisely what Sauer was advocating: condoning executive criminality.  

If Sauer ever read the address, he overlooked Washington’s observation that “the very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government”; his warning that “all obstructions to the execution of the laws,” including concerted efforts to “counteract” the “regular deliberation and action of the constituted authorities, are destructive of this principle”; and his conclusion that such obstruction would prove “fatal” to the new republic, as “cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government, destroying afterwards the very engines which have lifted them to unjust domination.” For Sauer to cite Washington’s denunciation of official lawlessness in defense of immunizing presidential lawlessness was obscene. 

His mangling of Franklin, which likewise went unchallenged, was no less egregious. Sauer repeatedly cited out of context—or, rather, miscited, in a slightly doctored version—a quotation from Franklin as authoritative, cinching the argument for presidential criminal immunity: “History provides one example only of a chief magistrate who is subject to public justice, criminal prosecution. And everybody cried out against that as a violation.”

As a matter of fact, Franklin was speaking at the Constitutional Convention in Philadelphia on July 20, 1787, in favor of impeaching and removing a president guilty of high crimes against the government rather than trying and executing him. It had nothing to do with a former president’s immunity from criminal prosecution after he left office, a matter the convention had yet to spell out; Franklin was explaining that impeachment was fairer to the accused than irregular proceedings and executions. The “one example” of “public justice” that Franklin had in mind was the extraordinary trial by an ad hoc tribunal of King Charles I and his subsequent beheading in 1649—revolutionary justice that, at the Restoration in 1660, jurists condemned as a violation of the English constitution. Sauer was equating that “public justice” with his client’s criminal prosecution in a regular court.

Here’s what Franklin actually said, in full:

History furnishes one example only of a first magistrate being formally brought to public justice. Every body cried out against this as unconstitutional. What was the practice before this, in cases where the chief magistrate rendered himself obnoxious: Why, recourse was had to assassination, in which he was not only deprived of his life, but of the opportunity of vindicating his character. It would be the best way, therefore, to provide in the Constitution for the regular punishment of the executive, where his misconduct should deserve it, and for his honorable acquittal, where he should be unjustly accused.

Franklin did not go into the possibility of a dishonorable acquittal for a president justly accused, which may not have occurred to him and in any event would have distracted from his argument. For Trump’s attorneys to twist those remarks to imply that he condoned immunizing presidents from criminal prosecution is a slander of Franklin and his legacy.

Nobody said that Donald Trump should have been tried by a special court and beheaded, let alone assassinated, instead of impeached and removed from office. If anyone had, everybody else would indeed have cried out against it as unconstitutional—not to mention immoral. But trying to square the fraudulent assertions of Trump’s attorneys with reality is a fool’s errand. So is trying to square Chief Justice Roberts’ condemnation of the appellate court’s ruling with the actual ruling. One is tempted to suggest that the prevailing authority on the Supreme Court’s behavior in the hearing on Trump v. United States was George Orwell, not Benjamin Franklin, but that would be a cliché. Better to return to Franklin: “A Republic, if you can keep it.”

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