SCOTUS Agrees Presidents Do Have Immunity From Criminal Prosecutions, But To What Degree?
By: Leslie McAdoo Gordon (The Federalist)
S E E D E D C O N T E N T
The Supreme Court heard arguments Thursday morning in the case of Trump v. United States on the question of whether and to what extent a former president of the United States enjoys immunity from criminal prosecution for official acts while in office.
Most of the justices seemed dubious about both parties' positions in this complex and largely uncharted area of law. No statute, prior Supreme Court precedent, or provision of the Constitution speaks directly to this issue. In 1982, the Supreme Court, in Nixon v. Fitzgerald, ruled that presidents enjoy immunity from civil litigation based on their official acts. The court, in a 5-4 ruling, grounded the immunity in the constitutional separation of powers. It reasoned that it would be inappropriate for the judicial branch to inquire into the reasons for presidential decisions for purposes of holding the president personally liable for damages. The court emphasized the unique nature and responsibilities of the president in arriving at this conclusion.
In Trump's case, the parties and the justices all agreed on certain points. First, that purely private conduct by the president, which is allegedly criminal, could be prosecuted. Trump's lawyer also conceded that campaign conduct, acting like an "office seeker" rather than an "office holder," was private, rather than official, conduct.
Second, that the president has some constitutional powers that are exclusive to the presidency, such as the power to grant pardons, and therefore acts carrying out those powers simply cannot be criminalized by Congress or prosecuted by prosecutors. These were referred to as "core" areas of presidential power throughout the argument. Beyond these two points, the parties and the justices wildly diverged in their views, from the applicable nomenclature to the scope of any immunity, to the procedural mechanisms for implementing it in the courts.
Technically, the question before the court 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?
Trump's lawyer, John Sauer, urged the justices to find that former presidents enjoy immunity from criminal prosecution in the same way that the earlier Fitzgerald case applied in civil cases. That ruling would preclude criminal prosecution for any act that came within the "outer perimeter" of the scope of a president's official acts, regardless of the reason, motive, intent, purpose, etc. for taking those acts. Sauer argued that an objective analysis should be used by the courts to determine if the conduct was or was not within the scope of the official responsibilities of the president. In other words, the analysis depends on whether the president's actions could conceivably have been within the scope of his authority and not on what the president actually had in mind.
By contrast, Special Counsel Jack Smith's lawyer, Michael Dreeben, argued that the Constitution does not provide any criminal immunity for the president, unlike the immunity for "speech and debate" provided for Congress. He argued that, instead, a former president can raise a case-by-case "challenge" to any indictment against him on the grounds that the specific acts alleged cannot be the basis for criminal charges under the Constitution. Dreeben told the high court he was speaking for the Department of Justice, not just the special counsel's office, in taking this position.
In an unusual move, Trump's counsel did not offer any rebuttal argument, apparently deciding that, after two and a half hours of argument, further discussion would not affect the views of any justice.
The leftist block of the court expressed concerns that Sauer's position rendered a president "above the law" and would remove any restraints a serving president might feel to abide by the law while in office to avoid criminal prosecution later. By contrast, most of the conservative justices appeared to be more worried about setting a precedent that former presidents can be put on trial for prior official actions, thereby incentivizing political prosecutions.
Justice Kavanaugh, in particular, analogized the situation to the politicization that occurred under the now-expired independent counsel statute and roiled the administrations of Presidents Reagan, George H.W. Bush, and Clinton. Justice Barrett expressed concern about such cases being brought in state courts, where many of the structural safeguards that Dreeben claimed would tend to prevent such cases would not exist.
The justices probed both lawyers about how their respective positions would apply in a practical sense. For example, what procedures would be used, when in the criminal process could their respective proposals be used, and whether there would be appellate review immediately or only after conviction, etc. Justices Barrett and Sotomayor particularly were interested in these technical issues. Along with Justice Jackson, they also focused on the statutory "clear statement" principle, which is often invoked by the DOJ and its Office of Legal Counsel to limit the effect of generally applicable criminal statutes to the presidency out of a concern for not impeding the legitimate functions of the office. While not directly addressing the question of whether immunity exists, these technical and application concerns sought to flesh out each party's proposed conclusion on the immunity issue.
There were some notable fireworks in the questioning. For example, Chief Justice Roberts got the questioning of the special counsel off with a bang by stating that he did not agree with the D.C. Circuit's reasoning that any criminal charge brought by a prosecutor against a former president is necessarily legal. Evidently aghast at the lower court's conclusion, he demanded to know why the court should not issue an opinion that simply reversed that "tautological" conclusion.
Justice Gorsuch, as he has in past arguments, formulated a hypothetical about "mostly peaceful protests." He demanded to know if a president leading such a protest that delayed the vote on a piece of legislation could be charged under the federal obstruction statute after leaving office since such activities would lie outside the "core actions" Dreeben conceded were non-prosecutable. Gorsuch also scoffed at Dreeben's suggestion that former presidents did not enjoy "immunity," but could instead raise an "as applied Article II challenge" to say their conduct was sufficiently official and not subject to prosecution. He expressed the view that by whatever name, the concept at issue is "immunity" of some form.
In general, it appears the court as a whole is prepared to agree with former President Trump that there is at least some form of immunity for former presidents from criminal prosecution, regardless of the label the justices put on it. At the same time, it is clear the justices have very different ideas about the scope of this "immunity," how it should actually apply at the trial level, and whether a trial court decision adverse to the former president can be appealed before trial.
Thus, the most likely result in this case appears to be a decision rendered with a long opinion and many concurrences and dissents, in whole or in part.
As to when that decision will be forthcoming, it is unclear when the justices will rule. Ordinarily, absent extenuating circumstances, they would do so by the end of their current term, which closes June 30.
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This could be a blow to the Democrat DOJ and their "get Trump at all costs" tactics. For now we play the waiting game.
We await their decision in late June.
Tyrants and dictators believe they are above the law...
They are not, and neither are Supreme Court Justices.
Vote Biden Harris 2024![✘]
A president isn't above the law, just because they have immunity for their actions as president, it doesn't mean they can't be removed through impeachment for a criminal act.
So, if Biden is found to have taken foreign money for political favor and the House announces they will proceed to impeachment, but Biden 'retires' before they can take that vote... He just gets away with it? There is no other recourse?
Yes
Then why did Nixon need to be pardoned when he left office?
Without immunity Ford could have been arrested for obstructing justice.
Depends on what they are prosecuting him for.
If it is for misuse of classified documents both as his time as Senator (no presidential immunity there) and VP (same damn thing) then they can.
If it is taking money illegally from foreign entities in return for political favors- again they can prosecute him for doing so both for his time both as Senator and VP.
His Presidential immunity only covers his ass for actions during the time he was president.
Not that there isn't plenty he should be charged criminally for like abusing the power of the FBI, CIA, IRS, and DOJ against his political opponents.
The gop and its maga courts absolutely should continue to be as repulsive and as toxic to American voters as imaginably possible...
And then, please do get back with us on November 6th! Will you?
If either through impeachment or one's own resignation they are no longer president, therefore they received their punishment.
Nixon didn't take part in initial crime (even if he had it wouldn't change things) but through his actions tried to cover it up and Ford pardoned him to remove any possibility of further prosecution and the embarrassment of trying a former president in which it would come before the SC on presidential immunity, something like we are seeing now. Any president knows they must have immunity or they become ineffective and hamstrung by future prosecutions for their actions as president.
You do realize that the presidential immunity also protects Biden too.
It also protects Obama who killed US citizens in a drone strike:
Who were the 4 U.S. citizens killed in drone strikes? - CBS News
Seems like with this idea a future President can enrich themselves illegally and with little downside.
But you're saying there can be no possibility of further prosecution.
I agree in part, but not fully. If Congress, does not act because of politics, OR cannot act due to resignation, then it's incumbent on the Justice System to hold them accountable for serious and obvious crimes. I'm not talking about policy decisions, but things a court finds are outside the bounds of a Presidents duties.
Obviously the SCOTUS will find a narrow way to rule. Trump's lawyers weren't really counting on Immunity anyway. They are counting on the stall they are already getting.
Of the 4 an issue may be made over Abdulrahman Anwar al-Awlaki who was only 16. But the other 3 were clearly tools of radical organizations bent on the destruction of the democratic world with an emphasis on 'America First'!
Had Trump been behind the orders you would have cheered.
You missed the point by a mile.
He is what happens when leaders eliminate their opponents either via murder or 4 simultaneous prosecutions.
Impeachment does not necessarily mean removal from office. Only three sitting US predidents have been impeached. The first was Andrew Johnson, second was Bill Clinton, while the third was Donald Trump who was impeached twice and all remained in office to the ends of their terms.
correct, as impeachment is to bring charges against, and up to the Senate to drop the real hammer, and they pussed out after Trump almost had some murdered that day, cause Pence is fortunate he was able to get away
Democrats believe they are not just above the law; but they are the law.
They know they cannot win 2024 with a "fair, free, open" election; so are trying to remove not just Trump but independent candidates from the ballots.
The only way to end Democrat tyranny and abuse of the FBI, CIA, IRS, DOJ, and court system at every level is to vote every last damn out of office!
Yes yes yes, we are all quit aware of your viewpoint...
" In general, it appears the court as a whole is prepared to agree with former President Trump that there is at least some form of immunity for former presidents from criminal prosecution, regardless of the label the justices put on it." This was the obvious result from the get go.
Trump's attorney argued Presidents have some "Limited immunity" for official acts. Yet, even Trump's attorney could not name such acts Trump is indicted for involved in this case. Still, there seemed to be no agreement at all that crimes committed in an official capacity are immune. It is established law that illegal orders must be disobeyed. Or else, why did we hang all those Nazis?
No kidding. no one suggested otherwise.
You fellows do realize that if say Biden had implored these tactics you would be freaking the fck out. As you guys have a tendency to do that, when Biden gaffs. Do realize you would NEVER stand for a Democrat claiming , without any evidence, the election had been stolen after losing every case presented in court, except one non consequential. If a Dem called for a gathering in DC, promising it would be 'wild', and then incites the crowd that then storms the Capitol in an attempt to stop the peaceful transfer of power, what would the 'right' have done? It has been almost 4 frckn years and Trump still pushes election LIES!
So perhaps be careful what you wish for in this immunity concept being floated, cause it is to affect all sides of the Divided States of America, and could come back to bite US All, not just the dems, and although you remain in denial as your non ending defense of Trump examples, this will cut both ways, like a hetero turning gay, but, you will be far less happy, of this I am sure, cause none are so pure....
You realize that Brandon and the Democrats have indeed employed these tactics?
The whole damn reason the case is before the Supreme Court is fucking Democrats abusing the power of the FBI, CIA, IRS, DOJ, and courts at every level.
Can't win in 2024 with Brandon's abysmal record of governing- so trying to use lawfare to remove not just their main political opponent; but independent candidates as well.
So much for the party of "free, fair, and open" elections.
The only one attemptingto use these departments illegallyso far proven, has been Trump, as he has admitted as much a few times. If anything, Biden and AG have held back in the beginning, until the January 6th inquiry showed how bad Trump and cump actually were and how far they ad attempted to go, but yu probably were afraid to watch the hearings, cause you were told not to. Who ever thought context could help one understand what actually took place...?
Bingo.
Very few of these people who are happy Trump may avoid justice know anything about Jack Smith's evidence against him. If they think they do we can discuss it right now.
Donald Trump did not just pursue a legal basis for complaining about or investigating the election, he took part in, leading, an illegal scheme to subvert the electoral vote process. By Jan 6th, Trump had lost all of the court cases you mentioned, and been threatened by his senior officials in the Justice Dept with their mass resignation if he appointed the election conspiracist Kenneth Clark as attorney general. Mike Pence had told him there was no chance he could participate in the illegal plan. Nonetheless, on Jan 6th Trump continued to specifically call for following the John Eastman plan. John Eastman's plan has gotten him disbarred as a lawyer in California.
THE single most important thing in the November election is the American people be made known of the specifics of the case against Trump before they vote. If that cant be done in a trial then patriotic Americans in a position to do something about it will have to find another way.
Reading some of the left wing reactions to the hearing yesterday and I noted yet again, how stunned perfectly normal and predictable positions espoused by the justices leave left wingers hysterical and seemingly shocked. I assume its because their echo chamber is so airtight and their legal analysts at sites like Vox tell them time and time again that the only possible correct outcome matches exactly with the partisan needs of the Democratic Party at that moment. It's a whole legal ideology that revolves around pure partisanship and doesn't seem to even grasp the possibility of other other concepts.
At some point, I'd hope the light dawns on them that a legal "expert" who only tells you what you want to hear is not really providing analysis but rather just cheerleading for your team. I know I really start approaching pundits critically when they are often wrong and don't ever tell the reader that even though this X is the preferred outcome for conservatives, it will lose because of Y. Yet time after time, so many progressives eat up the partisan cheerleading and mistake it for actual analysis of the issues.
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Do you think Americans need to know , in detail, the case against Donald Trump in the election interference matter, before the November election? In other words exactly what evidence Jack Smith has developed.
Yes or no ?
The Court is not a media outlet and a special prosecutor is not (or should not be ) a partisan election agent. It's amazing that Democrats think the Court's role is to inform voters and not, you know, obtain justice.
Wasn't publicizing the information that painted Trump in the worst possible light the job of the J6 committee? What difference will repeating it make?
The J6 committee hearings had 15 million viewers. There 150 million American voters.
Trump has had four years to tell the American people why he sat watching tv on the afternoon of Jan 6th instead of trying to do something to end the "riot" (which was launched on his behalf). The best he has ever done on that score was to tell an NBC interviewer "I'm not going to tell you that".
Trump did nothing to end the "riot" because he wanted it to succeed.
The voters should have the details of that laid out before they vote. Period. The nation's honor is at stake.
Nothing is stopping democrats from spending every day until Election Day publicizing every piece of evidence they think is relevant
Trump held an election denial strategy meeting in the Oval Office in December of 2020 that has been described as insane. In attendance were Sydney (mental case) Powell, Michael (Q Anon) Flynn, Rudy (the drunk) Giuliani, and three or four other conspiracy fanatics. Trump did not dispute any of the suggestions made to him that night.
This person is not acceptable to be president of the United States. Period, end of story.
It is a national disgrace that conservatives and Republicans in this country are in total denial.
In general, it appears the (conservative) court as a whole is prepared to agree with former President Trump that there is at least some form of immunity for former presidents from criminal prosecution, regardless of the (criminality involved)
fixed it.
Facts annoy you that much?
If I can find some right winger here who knows the facts we will find out.
To quote Yoda, "That is why you fail."
The Title has been modified. The actual title of the article is "SCOTUS Agrees Presidents Do Have Immunity From Criminal Prosecutions, But To What Degree?"
That's the way the "Fetch Seed" pulls it. I tried it.
The title has NOT been modified. Ran it two additional times with the fetch seed function. Come up the same way every time.
You can edit it to the correct title. Blaming it on the Fetch feature is lame.
So is crying about it.
The title has been updated.
The title has been changed from what the Fetch function generated. See your PRs.
Wonder when SCOTUS will get around to reviewing the implications of impeachment on immunity from prosecution? Trump really was impeached and acquitted for Jan. 6th after leaving office. Doesn't that impeachment provide some sort of immunity from prosecution?
At this point, SCOTUS seems to be limiting consideration to the extent of judicial authority. SCOTUS seems to be skirting the issues of Constitutional checks and balances and separation of authority. After all, prosecution is a function of the executive and not the judiciary. Prosecution is about enforcing law which is a function of the executive.
The real question in this instance is how far does judiciary authority extend toward addressing prosecutorial abuse. It has become all too obvious that political motivations by the executive can result in prosecutorial abuse. In the current situation, a simple indictment is being used as a political weapon without having been adjudicated. Prosecutors are using the courts to achieve a political result. How far does judicial authority extend in addressing the prosecutorial abuse?
Questions concerning immunity are really about the extent of executive authority to prosecute. Ultimately the issue requires determining the intent of a prosecutor. Doesn't the situation really require SCOTUS to define proper intent and motivations for prosecution? Does a current or former President have immunity from a politically motivated prosecution?
And it was for obstructing something the Democrats never proved.
One would think. But given the state of affairs now, Biden can't win the election with his record. Their only other option is political prosecution of all opposition that we are seeing now.
Democrats are preparing excuses for overturning the election if Biden doesn't win. And, as you point out, Biden winning the election is far, far from certain.
You'd think beating Trump would be a low bar. Democrats want to ensure that Biden can sneak under the bar if he can't get over it. What's different this time is how brazen Democrats have been in rigging the election.
It's not like their attempts have been successful. They've been trying since 2016 to remove Trump from office and the ballots and it's blown up in their faces every time.
What blew up in 2022 other than the Red Wave?
And look at what the Democrats had to do to make that happen.