Last week’s immunity decision by the U.S. Supreme Court will strengthen presidential power in multiple domains, including foreign policy. Given the already robust state of institutional power and autonomy the office has come to possess in recent years, this ruling’s new departure from existing limits is troubling.
By declaring that the president is immune from prosecution, the court goes beyond existing safeguards in criminal law. As Justice Ketanji Brown Jackson explains in her dissent, immunity in criminal cases is distinct from the other protections provided by law to a criminal defendant, such as presumption of innocence beyond a reasonable doubt, access to legal counsel, trial by jury, due process generally, and affirmative defenses. An affirmative defense allows, among other things, for defendants to say that even if the elements of a criminal offense can be shown by the facts, their conduct was nonetheless justified. The “public authority” defense, for example, suggests that an official should not be found guilty if acting on the basis of state (public) authority. That defense was already available to Trump, but the immunity shield is fundamentally different because, as Jackson explains, a president is now immune from all suits. There is no need for a trial court to assess what defenses might apply in a given criminal case because immunity prevents the case going forward at all. Such a barrier is obviously helpful to a president-as-defendant, but is it good for the republic? A closer look at the components of the decision reveals reasons to worry.
The new presidential criminal immunity compounds an already-existing construction of broad presidential authority in foreign affairs.
There are three parts to the new presidential immunity. First, actions taken under core constitutional powers are absolutely immune: for example, use of the pardon power or the appointment power stated explicitly in Article II. The reasoning here is that presidents cannot effectively do their job with a threat of prosecution looming, and therefore the principle of separation of powers requires that those core powers be unfettered, beyond the reach of criminal statutes. Second, official presidential acts are also immune up to the “outer perimeter” of a president’s official functions (that is, defining “official” very broadly). Thus, even if an action does not proceed directly from an expressly stated power, it will be protected by immunity even to the outer limit of what is reasonably considered official. Unofficial acts do not qualify for immunity under the court’s holding, but the realm of the unofficial has been narrowly circumscribed. And there is one more wrinkle. Even in prosecutions involving unofficial acts, evidence of motive may not be derived from presidential acts categorized as official. Here the majority opinion is most opaque—and in fact, one of the six majority justices (Amy Coney Barrett) declined to join the motive-related section of the opinion, leaving it at a bare majority of five.
The Trump v. U.S. decision is unprecedented in stating that a president is now immune from criminal prosecution as detailed above. But it is also unprecedented in the strictly legal sense. The majority concedes that the court had not ruled previously on the criminal immunity of presidents. It had, in a case involving Richard Nixon, found civil immunity from a suit for damages against a president. In fact, that case is where the term “outer perimeter” in reference to official acts originates. Whatever one thinks of the Nixon case, civil litigation is a far cry from the prosecution of an alleged felon on behalf of the public interest in safety (even if the alleged felon is or was a president). Transposing that civil immunity into a criminal context is a radical (and activist) step for a court to take. The majority concedes, once again, that constitutional history as well as caselaw precedent is lacking. So, it relies on arguments about the separation of powers to ground its ruling. However, although separation of powers is a universally acknowledged principle, there is no necessary link between that principle and its broadest possible application here. Multiple other resolutions would safeguard a separate sphere of action for the president; why choose the one that comes with the greatest risk to the equally important value of public accountability for criminal acts?
In addition to being unprecedented, the ruling was also unnecessary. The Supreme Court reviews and decides cases at its own discretion, taking about 70 each year from among the thousands of petitions it receives. There are no binding rules for which cases the court will hear, though federal rules provide discretionary guidelines. But if four of the nine justices signal a desire to hear a particular case, the court will do so. In this instance, the U.S. Court of Appeals for the D.C. Circuit ruled on the immunity question in an opinion that was well-reasoned and consonant with existing law, finding no basis for the claims of presidential immunity raised below. Had the Supreme Court declined review, that lower court decision would have stood as precedent only in the D.C. Circuit, not nationwide. The principles of judicial economy (using the decisional power sparingly) and incrementalism (ruling on narrow grounds rather than sweeping ones) would have counseled against wading into the troubled waters of the Trump case. Ironically, the majority justices noted that this case was not merely about Trump, but also about writing a “rule for the ages.” In other words, observers should not be so focused on Trump’s accountability for the January 6 violence but rather about the future contours of the presidency. And yet they authored a decision that does harm to both. Declining review would have been the far wiser course.
The new presidential criminal immunity compounds an already-existing construction of broad presidential authority in foreign affairs. Dating back at least to the 1936 decision in the Curtiss-Wright case, the court has recognized a distinction between domestic and foreign spheres of presidential action, allowing a president far wider latitude of discretion in the latter. Consistent with and extending this view, members of the court have recently urged a hands-off approach to evaluating presidential actions in foreign policy generally, citing a lack of institutional competency in that sphere. On the one hand, the latest decision continues a trend of broadening power and decreasing accountability of presidents; on the other, it will likely embolden presidents further in undertaking reckless foreign policy adventures. Examples abound of the consequences of aggressive use of executive power worldwide, for instance Rodrigo Duterte’s extrajudicial punishments in the Filipino anti-drug campaign, Vladimir Putin’s invasion of Ukraine, Benjamin Netanyahu’s authorization of attacks on civilians in Gaza, and Harry Truman’s use of the atomic bomb against Japan.
What can be done to restore any accountability to Trump and future presidents? Aside from amending the Constitution to strip immunity from the president or relying on presidents to police themselves—both unrealistic—government prosecutors will likely try to narrow the scope of the immunity created by the court. The litigation over Trump’s election-subversion is ongoing. Trial courts must now apply the rules created by the Supreme Court. For now, acts at the periphery of presidential functions are not absolutely immune, meaning that immunity in such instances can be overcome when the public interest so requires. This is a form of balancing whose outcome is far from certain, but it represents at least the possibility that the standard will evolve in a way that restricts immunity rather than preserving or expanding it. Second, the majority notes that even if evidence of motive is excluded from prosecution of unofficial criminal acts, publicly available motive evidence could be used. The murkiness of this part of the opinion represents an opening for developing the standard in a way more restrictive to defendants, both Trump and others.
The concept of executive immunity derives from the sovereign immunity claimed by English kings, resting on the premise that “the king can do no wrong.” As Justice Sonia Sotomayor notes in her strongly worded dissent, the majority decision threatens to put in place the very principle of monarchical supremacy that this nation rejected at its founding. This concern cuts across partisan lines, as any future president will take office with a new and expansive power standing ready for use.
