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Supreme Court's Presidential Immunity Ruling Could Shield Outrageous Abuses of Power

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Donald Trump | Carol Guzy/Zuma Press/Newscom

Challenging the federal prosecution stemming from his attempts to overturn the results of the 2020 election, Donald Trump argued that former presidents can be prosecuted for “official acts” only if they are first impeached by the House and convicted by the Senate based on the same conduct. The Supreme Court today rejected that claim, which is based on an implausible reading of the constitutional text. At the same time, the Court held that a former president enjoys “absolute” immunity for “actions within his exclusive constitutional power,” “presumptive” immunity for other “official acts,” and no immunity for unofficial acts.

Since these distinctions require detailed, fact-specific analysis, the justices remanded the case to U.S. District Court for the District of Columbia to determine which parts of the election interference indictment can survive based on the Court’s guidance. That decision probably means any trial in this case won’t begin until after this year’s presidential election. And depending on the outcome of that contest, the case may be dropped before it is resolved.

The Court’s ruling in Trump v. United States is based on the concern that the threat of criminal charges is apt to have a chilling effect on a president’s performance of his duties, especially when he makes controversial decisions that his political opponents might view as illegal. But in weighing the risks of presidential paralysis against the risks of presidential impunity, the ruling raises troubling questions about when and how a former occupant of the White House can be held criminally liable for abusing his powers.

“This case is the first criminal prosecution in our Nation’s history of a former President for actions taken during his Presidency,” Chief Justice John Roberts writes in the majority opinion, which was joined in full by four of his colleagues. ”We are called upon to consider whether and under what circumstances such a prosecution may proceed. Doing so requires careful assessment of the scope of Presidential power under the Constitution. We undertake that responsibility conscious that we must not confuse ‘the issue of a power’s validity with the cause it is invoked to promote,’ but must instead focus on the ‘enduring consequences upon the balanced power structure of our Republic.’”

Both sides agreed that a former president can be prosecuted for “unofficial acts committed while in office,” although they disagreed about which conduct described in the indictment fell into that category. Today’s decision points toward resolution of that dispute but leaves many issues unresolved.

When Trump urged the Justice Department to investigate his baseless allegations of election fraud, Roberts says, he was exercising his “conclusive and preclusive” authority. The executive branch has “‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute,” he writes, “including with respect to allegations of election crime.”

The indictment also alleges that Trump “attempted to enlist” Vice President Mike Pence to “use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results.” Trump wanted Pence to reject electoral votes for Joe Biden from several battleground states and send them back to state legislatures to consider whether he actually won them. When the president and the vice president “discuss their official responsibilities,” Roberts says, “they engage in official conduct.” The government therefore has to overcome a presumption of immunity, which means the district court must consider whether prosecuting Trump based on these conversations would impermissibly intrude on executive authority.

Other allegations involve Trump’s interactions with state officials and private parties. Trump tried to persuade state officials that the election results had been tainted by systematic fraud, and his campaign enlisted “alternate” electors that he wanted state legislators to recognize instead of the Biden slates.

Those actions, Trump maintained, were “official” because he was trying to ensure the integrity of a federal election. To the contrary, Special Counsel Jack Smith argued, Trump was trying to undermine the integrity of the election, and he did so in service of his interests as a political candidate, not as part of his presidential duties. According to the Supreme Court, the district court therefore must determine, as an initial matter, “whether Trump’s conduct in this area qualifies as official or unofficial.”

Finally, the indictment cites Trump’s behavior on January 6, 2021, the day his supporters, inspired by his phony grievance, invaded the U.S. Capitol, interrupting the congressional tally of electoral votes. Trump’s conduct that day consisted mainly of his speech at the pre-riot “Stop the Steal” rally and various tweets. Roberts notes that the president has “extraordinary power to speak to his fellow citizens and on their behalf.” Generally speaking, his public communications therefore “are likely to fall comfortably within the outer perimeter of his official responsibilities.” Whether all of Trump’s communications counted as official acts, Roberts says, depends on the “content and context of each,” requiring “factbound analysis” by the district court.

“Trump asserts a far broader immunity than the limited one we have recognized,” Roberts writes. That claim was based on a counterintuitive reading of the Impeachment Judgments Clause, which says that when Congress impeaches and convicts a federal official, “the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.” Trump’s lawyers said that means a former president can be prosecuted for abusing his powers only after he is impeached and removed for the same underlying conduct.

“The text of the Clause provides little support for such an absolute immunity,” Roberts writes. “It states that an impeachment judgment ‘shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.’ It then specifies that ‘the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.’ The Clause both limits the consequences of an impeachment judgment and clarifies that notwithstanding such judgment, subsequent prosecution may proceed. By its own terms, the Clause does not address whether and on what conduct a President may be prosecuted if he was never impeached and convicted.”

Roberts adds that “historical evidence likewise lends little support to Trump’s position.” That evidence suggests the clause was aimed at resolving the question of whether prosecuting an impeached and removed president would qualify as double jeopardy.

“The implication of Trump’s theory is that a President who evades impeachment for one reason or another during his term in office can never be held accountable for his criminal acts in the ordinary course of law,” Roberts writes. “So if a President manages to conceal certain crimes throughout his Presidency, or if Congress is unable to muster the political will to impeach the President for his crimes, then they must forever remain impervious to prosecution.” But “impeachment is a political process,” and “transforming that political process into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of our Government.”

The Court’s decision nevertheless raises questions about whether a former president can be held criminally liable for outrageous abuses that arguably qualify as official acts. “The President of the United States is the most powerful person in the country, and possibly the world,” Justice Sonia Sotomayor writes in a dissent joined by Justices Elena Kagan and Ketanji Brown Jackson. “When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”

In addition to joining Sotomayor’s opinion, Jackson filed a dissent that faults the majority for requiring a hazy immunity analysis while leaving crucial questions unanswered. “To the extent that the majority’s new accountability paradigm allows Presidents to evade punishment for their criminal acts while in office, the seeds of absolute power for Presidents have been planted,” she writes. “And, without a doubt, absolute power corrupts absolutely….The Court has now declared for the first time in history that the most powerful official in the United States can (under circumstances yet to be fully determined) become a law unto himself.”

Roberts complains that the dissents “strike a tone of chilling doom that is wholly  disproportionate to what the Court actually does today—conclude that immunity extends to official discussions between the President and his Attorney General, and then remand to the lower courts to determine ‘in the first instance’ whether and to what extent Trump’s remaining alleged conduct is entitled to immunity.” Recognizing that the Constitution gives the president “sweeping powers and duties” does not “place him above the law,” he argues. “It preserves the basic structure of the Constitution from which that law derives.”

The dissenters’ objections “boil down to ignoring the Constitution’s separation of powers and the Court’s precedent and instead fear mongering on the basis of extreme hypotheticals about a future where the President ‘feels empowered to violate federal criminal law,’” Roberts says. Yet those “extreme hypotheticals” are surely worth considering.

The majority says Trump cannot be prosecuted for urging the Justice Department to embrace his stolen-election fantasy because such conversations fell within his “conclusive and preclusive” authority to enforce federal law. But the president is also commander-in-chief of the armed forces, which suggests that orders to the military, whether they involve assassination or a coup, likewise trigger absolute immunity. The president has plenary authority to issue pardons, which suggests impeachment might be the only remedy if he takes a bribe in exchange for granting one.

That remedy, as Roberts notes in rejecting Trump’s interpretation of the Impeachment Judgments Clause, could be foreclosed by timing or a lack of political will. If a president abuses his powers toward the end of his term (as happened in this case), resigns immediately afterward, or conceals his crimes well enough that they do not come to light until after he has left office, impeachment would not be a viable option, and his prosecution could be blocked by “absolute” or “presumptive” immunity, leaving no way to hold him accountable.

Roberts glides over such possibilities, focusing instead on the threat to presidential authority that allowing prosecution for “official acts” could pose. One of the charges against Trump, for example, alleges that he defrauded the United States, which is a felony punishable by up to five years in prison under 18 USC 371. Section 371, Roberts notes, “is a broadly worded criminal statute” that can cover “any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government.” Since “virtually every President is criticized for insufficiently enforcing some aspect of federal law,” he says, “an enterprising prosecutor in a new administration may assert that a previous President violated that broad statute.”

Without immunity, such prosecutions of former presidents “could quickly become routine,” Roberts worries. “The enfeebling of the Presidency and our Government that would result from such a cycle of factional strife is exactly what the Framers intended to avoid. Ignoring those risks, the dissents are instead content to leave the preservation of our system of separated powers up to the good faith of prosecutors.”

In a partial concurrence, Justice Amy Coney Barrett says most of Roberts’ opinion “is consistent with my view that the Constitution prohibits Congress from criminalizing a President’s exercise of core Article II powers and closely related conduct.” But “properly conceived,” she says, “the President’s constitutional protection from prosecution is narrow.”

Barrett worries that “the Court leaves open the possibility that the Constitution forbids prosecuting the President for any official conduct.” Although “I agree that a President cannot be held criminally liable for conduct within his ‘conclusive and preclusive’ authority and closely related acts,” Barrett writes, “the Constitution does not vest every exercise of executive power in the President’s sole discretion. Congress has concurrent authority over many Government functions, and it may sometimes use that authority to regulate the President’s official conduct, including by criminal statute. Article II poses no barrier to prosecution in such cases.”

Barrett favors a two-step analysis that asks first “whether the statute applies and then whether its application to the particular facts is constitutional.” For example, Barrett says, “the indictment alleges that the President ‘asked the Arizona House Speaker to call the legislature into session to hold a hearing’ about election fraud claims. The President has no authority over state legislatures or their leadership, so it is hard to see how prosecuting him for crimes committed when dealing with the Arizona House Speaker would unconstitutionally intrude on executive power.”

Barrett disagrees with the majority’s holding that “the Constitution limits the introduction of protected conduct as evidence in a criminal prosecution of a President, beyond the limits afforded by executive privilege.” In a bribery case, for example, the official act that a president allegedly performed in exchange for money would be clearly relevant in establishing his guilt. “Excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution,” Barrett writes. “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.”

In response, Roberts says “the prosecutor may point to the public record to show the fact that the President performed the official act” and may submit “evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act.” But the prosecutor may not offer “testimony or private records of the President or his advisers probing the official act itself.”

The Constitution “does not insulate Presidents from criminal liability for official acts,” Barrett writes. “But any statute regulating the exercise of executive power is subject to a constitutional challenge. A criminal statute is no exception. Thus, a President facing prosecution may challenge the constitutionality of a criminal statute as applied to official acts alleged in the indictment. If that challenge fails, however, he must stand trial.”

In this case, that prospect seems quite unlikely. The presidential election is in four months, and right now Trump seems poised to win it. If that happens, he surely will find a way to make the case disappear.

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