The Supreme Court’s presidential criminal immunity decision in Trump v. United States suffers from shallow reasoning, lack of historical support, and distortion of legal precedent. This piece addresses three major flaws in the decision. All three derive from the Court’s failure to examine and differentiate the source and scope of presidential power — whether constitutionally or congressionally derived and, where the former, whether exclusively committed to the president or not. The three flaws are: the majority’s reliance on separation of powers to justify finding criminal immunity for all official presidential action (even outside the areas of exclusive presidential authority) despite its absence from the text or history of the constitution, its seeming preclusion of reliance on the criminal law to differentiate official from unofficial presidential conduct (again even outside of areas of exclusive presidential authority), and its similar preclusion of the president’s motives in making the determination as to whether conduct is official or not.
Chief Justice John Roberts penned the majority opinion, which created (at the very least) a strong presumption of immunity for any official act taken by the president. It also precludes using evidence of such acts in a criminal case against the president, even one for private conduct – say, for example, paying hush money to a porn star to mislead the voting public in advance of the 2016 presidential election.
The Court makes the presumption of immunity exceedingly difficult to overcome. The government must establish that there is “no” danger “of intrusion on the authority and functions of the Executive Branch,” with no other factors to consider or balance. This new test is a bastardization of a test from a Supreme Court civil immunity case that did require balancing (in that case, Nixon v. Fitzgerald, 457 U.S. 731, 754 (1982), weighing “broad public interests,” specifically identifying vindication of the public interest in an ongoing criminal prosecution), without so much as a nod to the fact that its new test lops off consideration of the other side of the equation.
Finally, the Court grants absolute immunity for a subset of “core” presidential functions. The Court interprets these “core” functions broadly to encompass the president’s interactions with the Department of Justice (DOJ) – remarkably, even if it is to direct DOJ to commence “sham” investigations into fraud in a presidential election. The Court left for another day whether the conduct entitled to strong presumptive immunity should also be entitled to absolute immunity.
1. Separation of powers
The Trump criminal immunity decision is grounded on a sleight of hand that masks its naked twin goals of aiding Donald Trump and creating a presidency with broad unchecked powers.
To justify this new-found presidential immunity, Chief Justice Roberts could not draw on the text of the constitution or even any history around the time of its adoption. Instead, Roberts justified the criminal immunity protection by resort to the Court’s role in protecting the executive branch from encroachment by the legislative branch – what is termed in the law as “separation of powers” principles that prevent one branch of government from impermissibly encroaching on the constitutional functions delegated to another branch.
Roberts wrote, for instance, that “separation of powers principles … necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility.” To the dissents’ criticism about the majority’s lack of textual support, Roberts retorted that the Court’s civil immunity decisions similarly did not have textual support, and both are supported by implicit separation of powers principles in the constitution.
The Court’s cloak of separation of powers to justify its ruling is threadbare. The criminal case before the Court in Trump v. United States is one instituted by the executive branch against a former head of the executive branch. The Court’s decision operates not to restrict any branch of government from intruding on another, but the current executive branch from prosecuting a former executive branch member..
Of note, Justice Amy Coney Barrett in her concurrence would apply a legal methodology that asks whether Congress has the power to criminalize a particular presidential function, in which case the statute would be unconstitutional as applied to the president. Such an approach requires differentiating when the presidency has been accorded exclusive power by the constitution or whether Congress has the ability to regulate in that sphere. But no one joined her concurrence, and the majority opinion ignores this crucial distinction. In short, the executive branch decision to prosecute a former president may present an important executive branch policy issue, but absent application to a core and exclusive presidential function it is not a question of separation of powers between any of the three branches of government.
The Court does not justify why it should play any role in that issue whatsoever. Indeed, the Court says that prosecution is a core executive branch function. The fallacy in the Court’s “separation of powers” analysis is nowhere more transparent in its paeon to the unchecked power of the presidency to determine whether, when, and who to prosecute criminally. Roberts describes the executive branch’s authority over such matters as “conclusive and preclusive.” It has “‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute,” including with respect to allegations of election crime, citing ironically its Nixon precedent, which required a sitting president to turn over to prosecutors damning tapes regarding his official (and criminal) acts while in office that ended his presidency.
The irony, of course, is that Chief Justice Roberts gives the current president and his Attorney General no such “conclusive and preclusive” authority with respect to the prosecution of a former president. Instead, under bogus “separation of powers” intonements, it took away such power, arrogating to the court itself the policy decision of whether the executive branch can prosecute a former leader. In doing so, Roberts had to ignore substantial legal precedent, including another Nixon era decision in which the Court held that it must be presumed that “the incumbent President is vitally concerned with and in the best position to assess the present and future needs of the Executive Branch…”
Justice Barrett, in her separate concurrence, appears to have been wise to this stratagem and, in her concurrence at least, rejects it. She agrees that when it comes to the small number of functions that the constitution delegates exclusively to the president – the pardon power, for instance – Congress cannot criminalize its exercise, as such a statute would be unconstitutional. That, indeed, would be a violation of the separation of powers.
But those core powers given exclusively to the president, Justice Barrett notes, are small in number. “Properly conceived, the President’s constitutional protections from prosecution is narrow.” Here, Justice Barrett’s concurrence conforms to another influential concurrence, this one by Justice Robert Jackson in the enduring framework on separation of powers he laid out in Youngstown Sheet & Tube Co. v. Sawyer. He admonished that “a Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”
The separation of powers concerns do not apply, however, with the same force to the far greater range of “official actions” by the president, as to which the presidency does not have exclusive authority under the constitution. Nevertheless, in the name of separation of powers, the majority restricted one executive from prosecuting another based on a newly coined criminal immunity doctrine. To achieve that result, Justice Roberts could not proceed down the more honest and legally sound path articulated by Justice Barrett, in which the question was whether a statute was constitutional as applied to the executive branch, as that would not have justified immunity for all official acts.
In sum, the majority decision operates as a thinly veiled and poorly reasoned get-out-of-jail-free card for one former president, while creating a presidency untethered to normal Congressional checks and balances.
2. Relevance of the illegality of the presidential conduct
Justice Roberts appears to hold that in determining whether presidential conduct is entitled to some form of immunity, a court cannot consider whether it is illegal. In determining if the conduct is “official” conduct (entitled to presumptive or absolute immunity) or “unofficial” conduct (entitled to no such immunity) the decision says that a court may not consider illegality. “Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law…. Otherwise Presidents could be subject to trial on ‘every allegation that an action was unlawful,’” the Court wrote in Trump, quoting Harlow v Fitzgerald, 457 U.S. at 756 (addressing qualified civil immunity for executive branch officials).
The Court’s reliance on civil immunity decisions to support presumptive criminal immunity for all official acts is questionable, as Judge Tanya Chutkan, the district court judge in the case, detailed in her decision rejecting such immunity. The Supreme Court’s concern about the floodgates created by “every allegation” of illegality is far less pronounced in a criminal context than in a civil one. A criminal allegation of illegality requires a finding by a majority of independent grand jurors of probable cause – none of which is required to file a civil complaint (which was at issue in the Harlow case). And although probable cause is not the highest standard, a prosecutor has little incentive to bring a criminal indictment with a bare showing of probable cause, given that she will need to establish guilt beyond a reasonable doubt at trial. And the criminal indictment is the culmination of the grand jury discovery process as to the charges against the defendant. But a civil litigator will seek to make an allegation that will then permit commencement of ample civil discovery to support that bare allegation.
Leaving aside the questionable applicability of civil immunity decisions, the Court’s methodological rule that a court may not consider the mere allegation of illegality only makes sense when applied to actions that derive from true core powers delegated exclusively to the presidency by the constitution. Congress has no power to regulate at all in such areas and thus it makes sense that a court not consider an allegation of criminality. Legality, after all, is a congressional construct, and if it cannot act to make the president’s actions illegal, then it should not be considered. A simpler way to think about this is simply to note that a statute that purports to regulate a core presidential function is unconstitutional as applied, as Justice Barrett reasoned in her concurrence. (It is worth noting that even as to core powers, Congress presumably could have related criminal authority. For instance, Congress may presumably constitutionally criminalize selling pardons in exchange for personal or political gifts, or selling national security secrets to foreign enemies, but the Roberts majority does not deign to address how the contours of its immunity decision would handle such issues.)
The application of the Court’s categorical methodological rule is on shaky ground where a court is assessing presidential action that is not among the true core functions — i.e., presidential functions that are constitutionally derived but not “core” — and powers emanating from congressional authority. Congress has the power to regulate in both spheres and the Court does not give any reason why here illegality should not be a factor in differentiating official from unofficial presidential action.
To put it another way, if Congress can restrict what is a legitimate presidential function, and can accord the president legal authority, how can it never have the ability to render the action illegal, in whole or part? Illustrative hypotheticals abound. For instance, suppose a president decides it is in the best interest of the nation to assist a political ally to inflate his stock artificially or to promote false narratives to its shareholders – i.e., official acts, but not within core and exclusive presidential functions. Why can’t Congress criminalize such actions as violations of wire and securities fraud statutes?
There is even more reason to consider illegality if the president is acting in an official capacity pursuant to a statutory grant of authority. Indeed, the majority recognizes congressional statutes are a source of presidential authority. “When the President acts pursuant to ‘constitutional and statutory authority,’ he takes official action to perform the functions of his office.” If Congress can grant such authority, why can’t it limit the grant solely to legal actions and criminalize transgressions? Wouldn’t doing so be a proper way for Congress to effectuate its statutory purpose?
Given the broad definition of the “outer perimeter” of official presidential conduct used by the Court, and the inability for a court to consider illegality, one can imagine numerous situations where a president is, paradoxically, both acting in his official capacity and illegally under a statute. This Alice-in-Wonderland result is not addressed by the Court. But the anomaly is in keeping with its reliance on the constitution’s “take care” clause to support presidential immunity even when alleged to be violating the very law as to which the president is constitutionally required to take care.
The careful reader will note that the majority opinion speaks of the mere allegation of criminality not being a basis to differentiate official and unofficial conduct. It thus theoretically remains to be seen if the word “merely” in the court’s opinion will provide a means to limit its decision, where there is more than just the bare allegation of illegality (but it would appear to require more than an allegation in an indictment, even though that is found by probable cause). For the reasons noted here, it would be wise if it were to do so.
3. Relevance of the motive for the presidential conduct
Prosecutors routinely consider motive as a source of valuable proof in proving the commission of a crime, and seek to establish motive at a trial. The Court does not alter that ability at trial (assuming it does not require proof of official action). But the Court precludes consideration of motive before trial, in determining whether a presidential action is official or unofficial. This is as nonsensical as the flat prohibition by the Court to consider illegality in making such a determination.
Justice Roberts noted that “[i]n dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such an inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II interests that immunity seeks to protect.”
Where motive evidence would help establish the necessary showing of illegality noted above for functions that are not core constitutional presidential functions, then the consideration of motive evidence is a logical companion to the consideration of illegality. This is particularly so where a statute makes motive an element of the crime – for instance, criminal civil rights crimes. For example, 18 USC Section 249 prohibits, among other things, willfully causing bodily injury, when the crime was committed because of the actual or perceived race, color, religion, or national origin of any person. Under the majority decision, a president who orders the physical attack of a black or Muslim member of the press, who he deemed an enemy of the people, could violate the congressional statute, but be deemed to enjoy at least presumptive immunity because the action was taken within the outer perimeter of his official actions as determined without regard to the illegality of his conduct.
The Court’s broad-brush approach again fails to differentiate when the president is acting pursuant to core constitutional powers and when not. Subjective motive would be arguably irrelevant in the former only. That would be consistent with how the Court handled Trump v. Hawaii, for instance — if any president could enact this version of the so-called “Muslim ban,” whether this president did so with a discriminatory motive and animus was deemed irrelevant to the Court’s analysis. But the Court then grafted that on to a situation where the issues of legality and motive can be highly relevant to whether an action is official or not.
A Lawless Supreme Court?
As noted here, much remains to be worked out as to how the Court’s criminal immunity decision will be applied going forward. The need for clarity was paramount, whereas the Court’s broad and sloppy analysis risks engendering dangerous conduct by any future president who shows a lack of restraint or a penchant to test boundaries. It is remarkable that the majority stooped to criticize the lower courts for a lack of thoroughness in their addressing the immunity issue as a result of their haste, when the majority opinion is so slapdash even with the fullness of time.
It is hard not to be cynical about the opinion, and its bona fides, when the majority opinion boldly avers that it “expedited” the review of this matter, without so much as a word about why it was not heard six months ago when the government first sought review or why it was not handled with the same speed as the decision not to disqualify Trump from the presidential ballot in Colorado (or to hear anti-abortion appeals).
That a Court that overturned Roe v. Wade on the grounds that it was purportedly not sufficiently tethered to the constitution issued an immunity decision that is untethered to the constitution is not just ironic, it is revelatory of what we are now dealing with. A lawless Supreme Court is as anathema to a democracy as a lawless president.