The Supremes Take on Trump

On April 25th, the Supreme Court will hear arguments for and against former President Donald Trump’s claim of presidential immunity for his actions surrounding the 2020 presidential election. By April 8th, Special Counsel Jack Smith will submit the government’s brief that the former president does not have immunity. Trump’s reply is due before April 15th. The question to be addressed is: “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”  

The Supreme Court has already decided in Fitzgerald v. Nixon (1982) that “a former President of the United States” is “entitled to absolute immunity from damages liability predicated on his official acts.” But it has never issued a decision on a former president’s possible immunity in relation to criminal indictments involving executive decisions made under the color of the Constitution. 

Trump’s argument that he has immunity has rested on three principal points. Almost certainly, his team will repeat those before the Justices. 

First, a former president is immune from a criminal indictment if he or she has been impeached but acquitted by the Senate for acts that are essentially the same as those he has been criminally indicted for. The first question, therefore, is whether the Constitution provides a “go-pass-jail” card if the Senate acquits a president after being impeached? Article 1, Sec. 3 (cl. 7) reads: “Judgement in Cases of Impeachment 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: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law.” 

Trump’s reading of the provision reverses its logic. The opening sentence is intended to cabin impeachment to the act of removing an official from office—that is, conviction by the Senate “shall not extend further than to removal.” The next sentence clarifies that removal from office may not be the end of the matter depending on the character of the impeached conduct. (Importantly, not all impeachments are or were intended to be for criminal activities.) Since the impeachment process is, at bottom, a process culminating in a political body making a judgment not wholly judicial in nature, it wasn’t meant to be conjoined with a criminal process in which life and liberty could very well be at stake. 

Second, Trump’s team will argue that, absent immunity, former presidents could be repeatedly hounded and harassed by political opponents who might be in control of the Justice Department, or from prosecutors’ offices across the country. The result is Oval Office occupants preemptively trimming their behavior and executive decisions in a way that might not be conducive to the public good, or be in line with the president’s constitutional responsibilities. One extreme outcome of this scenario would be self-imposed restraints overtaking the exercise of key institutional qualities expected from the presidency, such as energy and decisiveness. In comparison with Trump’s argument about immunity stemming from his reading of the impeachment provision, this argument potentially carries weightier merit.  

It’s also an argument that someone like Justice Brett Kavanaugh, who has previously written about the problem arising from even civil suits on presidential time and focus, will take seriously. Those general concerns are the grounds for the Justice Department Office of Legal Counsel’s opinion that presidents have absolute immunity from criminal prosecution while in office. Indicting a president, the OLC argues, would “unduly interfere” with the president’s ability to carry out his constitutional duties effectively and efficiently by creating “unacceptable burdens and distractions.” 

For the Justices to accept this argument, they would have to assume that the burden and distraction resulting from an indictment of a former president would have a similar, lasting impact on future Oval Office occupants’ behavior as would an indictment of a sitting president. At a minimum, such a connection would be speculative. It would also implicitly accept, at least to some degree, that Trump’s vision of rogue Justice Departments and state prosecutors would become the norm. In short, this is still a thin reed on which the Court would be making a consequential decision. 

Even if the Court were to decide to give former presidents immunity from criminal prosecution for actions done in their official capacity as the nation’s chief executive or as commander-in-chief, the issue would still arise of whether those actions were reasonably tied to the president’s constitutional authorities and duties. And it is on this peg that Trump hangs his third hat for claiming immunity for his actions surrounding the 2020 election. As my AEI colleague Peter Wallison has recently written, “it is highly likely” that Trump’s lawyers “will argue that the requirement in Article II—that ‘he shall take Care that the Laws be faithfully executed’—is broad enough to provide a basis for his intervention in the electoral vote counting in 2020.” As Wallison suggests, that argument will be a stretch. Nevertheless, if the Supreme Court does decide to give former presidents immunity for official acts taken while serving, then, in the case of Trump, it might well remand the case back to the lower courts for them to determine whether Trump’s actions can or cannot be interpreted as “official acts.” Presumably, given their previous rulings in the case, the judges there will conclude they do not amount to such, but only after more arguments and counter-arguments, and further appeals have been made.  

The equally, if not more, problematic element of expanding former presidents’ immunity for the exercise of core constitutional authorities is how to deal with a president employing those authorities for criminal purposes. America’s constitutional architects had already foreseen such a concern. Late in the Constitutional Convention, Edmund Randolph, then Virginia’s governor, worried that the pardon power was “too great a trust” to place with the president, particularly when it came to “cases of treason.” The Virginian was worried that a president might use that power for traitors who were, in fact, “his own instruments” and so be able to draw a convenient veil over his own guilt. Pennsylvania’s James Wilson—arguably the key architect of the presidency in the Constitutional Convention—responded by pointing to the necessity of a president having access to the pardon power at a time of national crisis. Nevertheless, Wilson added, if the president were “a party” to such a treasonous plot, he could “be impeached and prosecuted.” 

To be clear here, Wilson did not mean that the president had first to be impeached and convicted before being able to be prosecuted. As a delegate to the Convention, Wilson understood that the two were not a single, conjoined process. As he would later say in his own state’s ratifying convention, “far from being above the laws,” the president “is amenable to them in his private character as a citizen, and in his public character by impeachment.” The president doesn’t retain “a single privilege or security that does not extend to every person throughout the United States.” Even though the pardon power is understood to be plenary in that it has no set institutional limits, its use, according to Wilson, is still impeachable if it runs afoul of the president’s duties. And it is criminally prosecutable if it violates existing laws. 

Wilson’s focus is not on the legitimacy of the power being used, but on the ends for which it is being employed.

The Supreme Court’s decision to take up the question of a former president’s immunity from criminal prosecution seems to be driven by the desire to fill the existing legal hole in the matter and by concerns about the institutional integrity of the presidency. But the conundrum of doing justice to the needs of an effectively functioning presidency, while, at the same time (as Wilson insists) holding presidents accountable as citizens for their actions, is not always easily squared. Sometimes—as unsatisfactory as it often feels—the best thing the Court can do is leave well enough alone. 

Gary J. Schmitt is senior fellow in the Social, Cultural & Constitutional Studies Program at the American Enterprise Institute.

Image: Former President of the United States Donald Trump speaking with attendees at the Republican Jewish Coalition's 2023 Annual Leadership Summit at the Venetian Convention & Expo Center in Las Vegas, Nevada [Image cropped]. (Photo by Gage Skidmore, shared under CC BY-SA 2.0)