The Supreme Court of the United States has issued its decision in Trump v. United States. A federal grand jury has indicted former President Donald Trump on four counts for conspiring to overturn the November 2020 presidential election. This case is the first criminal prosecution in American history of a former President for actions during his Presidency. Trump has asked the federal courts to dismiss this indictment based on his claim that the President has absolute immunity from criminal prosecution for official actions that he took during his presidency. The federal District Court denied his motion to dismiss, saying that former Presidents do not have federal criminal immunity for actions they took as President. The D. C. Circuit Court affirmed this decision.
But now the Supreme Court has ruled (in a 6 to 3 decision) that the President has absolute immunity from criminal prosecution for actions within his "core constitutional powers"--that is, powers that belong exclusively to the President. And he has at least presumptive immunity from prosecution for any of his "official acts." But there is no immunity for his "unofficial acts."
Roberts wrote the opinion of the Court, in which Thomas, Alito, Gorsuch, and Kavanaugh joined in full, and in which Barrett joined in part. Sotomayor filed a dissenting opinion, in which Kagan and Jackson joined. Jackson also filed a separate dissenting opinion.
Sotomayor's dissenting opinion far more persuasive than Roberts' opinion for the majority. In fact, the majority's opinion is so lacking in any clear constitutional grounds that it is really a judicial amendment of the Constitution disguised as a constitutional interpretation. The majority has amended the Constitution to say--in Sotomayor's words--"in every use of official power, the President is now a king above the law" (Sotomayor, 30).
Think about what that means. The Supreme Court has just told us that if Trump is elected in November, he will be a king above the law. Doesn't that help Biden to recover from his pitifully poor debate performance? Because now Biden can organize his entire campaign around one question--Do you want Donald Trump to become the dictatorial King of America with the support of Trump's Supreme Court?
Of course, it would be better to replace Biden with another Democratic candidate who could then press this issue with more clarity and youthful vigor than can Biden--someone like Governor Jared Polis of Colorado, Governor Gretchen Wittmer of Michigan, or Michele Obama.
Quoting language from the Court's decision in the Dobbs case (overturning Roe v. Wade), Sotomayor says that the majority's decision establishing presidential immunity for official acts has "no firm grounding in constitutional text, history, or precedent" (Sotomayor, 4). We can organize the debate in this case around those three grounds for constitutional interpretation.
CONSTITUTIONAL TEXT
Of the six justices who signed the majority opinion in this case, at least four (Thomas, Gorsuch, Kavanaugh, and Barrett) are full-blown originalists; and two of them (Alito and Roberts) have often supported originalist opinions. Although there are different interpretations of originalist jurisprudence, the one common theme is respect for the text of the Constitution as the starting point for any proper constitutional interpretation. Any reasonable interpretation must be grounded in the constitutional text--in its original meaning or in the original intent of those who framed that text or those who ratified that text--and any judge's interpretation that has no textual grounds must be an expression of the personal preferences of the judge rather than a discovery of the Constitution's true meaning. Some originalists (like Antonin Scalia) have even chosen to call themselves "textualists" to make clear the primacy of the constitutional text itself.
Amazingly, however, the majority opinion in this case is not grounded in the text of the Constitution, which exposes the dishonesty of those who profess to be originalists but then adopt legal opinions that conform to their political values even though they have no basis in the Constitutional text. In this case, they decided to put Trump above the law by giving him absolute immunity from criminal prosecution for his official acts as President, even though there is no constitutional text justifying this.
Sotomayor says: "The Constitution's text contains no provision for immunity from criminal prosecution for former Presidents" (4). She gives three reasons for why this is important. First, we can see in the Constitution that the Framers knew how to provide immunity from prosecution whenever they wanted to. Because they explicitly provided a special limited immunity for legislators in Article I, section 6: "They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place." They did not extend any similar immunity to the President.
A second reason for why this silence about Presidential immunity is significant is that the Framers knew that some state constitutions had expressly provided some immunities to criminal prosecution to sitting governors. The Framers deliberately chose not to use similar language to give the President immunity.
A third reason for taking this seriously is that the Impeachment Judgment Clause explicitly pointed to a form of criminal liability for the President. "Judgment 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, Judgment and Punishment, according to Law" (Art. I, Sec. 3).
And since a President can be impeached for "Treason, Bribery, or other high Crimes and Misdemeanors" (Art. II, Sec. 4), a President impeached for bribery would still be exposed to criminal punishment for bribery, and bribery is surely an "official act." So, for example, if the President took bribes in the exercise of his pardoning power, he could be punished for this according to criminal law.
Roberts responds to this by saying that it does not matter that there is no "Presidential immunity clause" in the Constitution, because, after all, there is no "separation of powers clause" either; and yet the doctrine of separation of powers is "undoubtedly carved into the Constitution's text by its three articles separating powers and vesting the Executive power solely in the President" (37-38).
Following the lead of the decisions in United States v. Nixon (1974) and Nixon v. Fitzgerald (1982), Roberts argues that presidential immunity is constitutional to the extent that it is necessary to preserve the separation of powers by protecting the President's free exercise of his executive powers.
Roberts asserts: "Given the Framers' desire for an energetic and vigorous President, the principal dissent's view that the Constitution they designed allows all his actions to be subject to prosecution--even the exercise of powers it grants exclusively to him--defies credulity" (39).
But as Sotomayor indicates, the history of the framing and ratification of the Constitution indicates that the Framers really did believe that "an energetic and vigorous President" could be, and should be, "subject to prosecution."
HISTORY
As evidence that the Framers wanted "an energetic and vigorous President," Roberts cites Alexander Hamilton's argument in Federalist Number 70 that "energy in the Executive is a leading character in the definition of good government." But then Roberts ignores what Hamilton said in Federalist Number 69 about how the President is "liable to prosecution and punishment in the ordinary course of law," and how this distinguishes the President from the King of Great Britain, who is "sacred and inviolable" and thus above the law in not being subject to legal punishment.
At the Constitutional Convention of 1787, James Madison "suggested . . . the necessity of considering what privileges ought to be allowed to the Executive" (Farrand, 2:503). But there is no record that the Framers at the Convention ever discussed this. Later, Charles Pinkney, one of the delegates at the Convention, explained: "Let us inquire, why the Constitution should have been so attentive to each branch of Congress, so jealous of their privileges, and have shewn so little to the President of the United States in this respect. . . . No privilege of this kind was intended for your Executive" (Farrand, 3:385).
In the North Carolina Ratifying Convention, James Iredell compared the British King and the American President. The King "has great powers and prerogatives; and it is a constitutional maxim, that he can do no wrong." By contrast, the President can be punished for his bad behavior. He can be impeached. And "if he commits any crime, he is punishable by the laws of his country, and in capital cases may be deprived of his life" (Bailyn, 2:873). As far as I know, no one in any of the ratification conventions disagreed with Iredell about this.
If you are an originalist, this should settle the issue: if the Framers of the Constitution and those who ratified the Constitution never intended to grant the President any such privilege, then there is no executive privilege in the Constitution. But if you are one of Trump's Justices on the Supreme Court, you can set aside your professions of originalism to invent a doctrine of executive privilege that will put Trump above the law. (Similarly, in Trump v. Anderson, Trump's Justices disregarded their originalist commitments in violating the original meaning of Section 3 of the 14th Amendment.)
You will also have to ignore the long constitutional history in which the President was assumed to be subject to criminal prosecution. For example, when Richard Nixon resigned, it was assumed that of course he would be open to prosecution for whatever crimes he committed while President. To avoid that, President Gerald Ford pardoned Nixon, granting him "full, free, and absolute pardon . . . for all offenses against the United States which he . . . has committed or may have committed or taken part in during" his Presidency. Nixon wrote a response to this pardon saying that he was accepting "full and absolute pardon for any charges which might be brought against me for actions taken during the time I was President of the United States" (Sotomayor 9).
Roberts responds to this history of Ford's pardon and Nixon's acceptance with . . . silence. If Roberts had said anything about this, he would have had to argue that Ford's pardon was unnecessary because Nixon had absolute immunity from criminal prosecution. But if Roberts had said this, the absurdity of his position would have been evident.
Roberts is also silent about what Trump's own lawyers said during his second impeachment trial. They insisted that a former President "is like any other citizen and can be tried in a court of law." Trump's impeachment counsel stated: "If my colleagues on this side of the Chamber actually think that President Trump committed a criminal offense . . . after he is out of office, you go and arrest him" (Sotomayor 10).
Sotomayor observes: "In sum, the majority today endorses an expansive vision of Presidential immunity that was never recognized by the Founders, any sitting President, the Executive Branch, or even President Trump's lawyers, until now. Settled understandings of the Constitution are of little use to the majority in this case, and so it ignores them" (10).
PRECEDENT
For the majority in this case, the text of the Constitution and the history of its interpretation do not matter. All that matters is the precedent set by Nixon v. Fitzgerald (1982).
Arthur Fitzgerald had filed a civil lawsuit for damages against government officials--including Richard Nixon--claiming that he had wrongly lost his position as a contractor for the U.S. Air Force because of his testimony before Congress in 1968. Nixon said that he had "executive privilege," such that he could not be sued for actions taken while he was in office. Nixon's claim was rejected by lower courts. But in a 5-4 decision, the Supreme Court ruled that the President has absolute immunity from legal liability for civil damages based on his official actions.
Now, Roberts and the majority of the Court say that this precedent supports an extension of absolute presidential immunity to include immunity from criminal prosecution.
There are two possible answers to this argument. I think the best answer is that the Fitzgerald decision was wrong because there is no ground in constitutional text and history for saying the President has such immunity. Unfortunately, Sotomayor does not say this; and this is the weakest part of her opinion--that she accepts the Fitzgerald decision.
But there is a second answer that she adopts: even if we accept the Fitzgerald decision, we should see that it rules in favor presidential immunity only in civil cases; and the Fitzgerald opinion explicitly denies that that there is any presidential immunity in criminal cases (Sotomayor 12-19).
The majority in Trump v. United States disagrees, and in doing so, they have accepted a claim of absolute monarchic immunity once asserted by Nixon. In 1974, Special Prosecutor Leon Jaworski had obtained a subpoena ordering Nixon to turn over certain tapes and papers related to the criminal investigation of the Watergate burglary. Speaking before Federal Circuit Court Judge John Sirica, Nixon's attorney James St. Clair said: "The President wants me to argue that he is as powerful a monarch as Louis XIV, only four years at a time, and is not subject to the processes of any court in the land except the court of impeachment." Sirica rejected this claim, which was also rejected by the Supreme Court in United States v. Nixon.
But now the Supreme Court has ruled that when Trump is elected President in November, he will be "as powerful a monarch as Louis XIV."
Consider Sotomayor's warning:
"The Court effectively creates a law-free zone around the President. . . . The President of the United States is the most powerful person in the country, and possibly the world. 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 as political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune" (29-3).
Roberts says nothing to show that these are not realistic possibilities under his opinion. He does ridicule Sotomayor for "fear mongering on the basis of extreme hypotheticals" (40). But since Roberts says that the President has absolute immunity for any exercise of his "core powers," and since the power of the President as Commander-in-Chief of the military is surely a "core power," ordering his military to assassinate a political rival must be within the absolute immunity the Court has created.
Happy 4th of July!
REFERENCES
Bailyn, Bernard, ed. 1993. The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification. 2 vols. New York: The Library of America.
Farrand, Max, ed. 1966. The Records of the Federal Convention. 4 vols. New Haven, CN: Yale University Press.
