The immunity ruling undermines presidential ethics and criminal justice

The decision has serious ramifications for the nation’s ability to hold future presidents accountable for criminal behavior.
Then-President Donald Trump speaks to his supporters at the Save America Rally on Jan. 6, 2021, on the Ellipse near the White House in Washington, D.C. (Yuri Gripas/Abaca Press/TNS)

Credit: TNS

Credit: TNS

Then-President Donald Trump speaks to his supporters at the Save America Rally on Jan. 6, 2021, on the Ellipse near the White House in Washington, D.C. (Yuri Gripas/Abaca Press/TNS)

On Monday, the Supreme Court issued a highly anticipated ruling in Trump v. United States. The court split 6-3 on partisan and ideological grounds.

Federal prosecutors allege that former President Donald Trump violated various federal laws by conspiring with government officials and private individuals to overturn the results of the 2020 presidential election. In his defense, Trump argued that presidential immunity bars prosecution. Trump’s contention required the court to determine under what circumstances a president could face prosecution for acts that occurred during his term in office.

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Court precedent already gives the president absolute immunity from civil damages for official conduct. Until this ruling, the court had never addressed a president’s immunity from prosecution. Also, the words “presidential immunity,” like “abortion,” do not appear in the Constitution, even though the Framers explicitly extend immunity to members of Congress. Accordingly, presidential immunity is a judge-made doctrine.

Although the justices issued a complex 119-page opinion, the court refrained from deciding whether Trump is immune from prosecution on all but one issue alleged in the indictment (use of Justice Department staff to conduct sham election-fraud investigations) and returned the case to the trial court for further proceedings. Nonetheless, the ruling has definite short-term implications.

Because the court left open the question of whether Trump has immunity on most of the charges against him, the former president will not face a federal trial, if at all, until after several more rounds of litigation. This will certainly delay the prosecution beyond 2024 and, possibly, through most of 2025. This ruling should not disturb guilty verdicts against Trump reached by a New York State jury, although Trump has already invoked court’s ruling to assert immunity in that case.

In the long-term, the court’s ruling has serious ramifications for the nation’s ability to hold future presidents accountable for criminal behavior. The opinion also threatens the court’s legitimacy, already suffering after controversial rulings on abortion, affirmative action and other important matters.

The court held that presidents are not immune from criminal liability for private or unofficial conduct. This position follows long-standing precedent on executive privilege and should not receive much criticism. The court, however, went far beyond precedent and held that presidents must possess some immunity for official conduct. If the conduct falls within a core aspect of presidential power, such as granting a pardon or nominating a judge, then absolute immunity exists. The court raised the stakes even more by extending “at least” a presumptive immunity for acts that lie within the “outer perimeter” of presidential authority. The court has not decided whether this immunity is absolute or merely presumptive. If presumptive, the government must demonstrate that prosecution poses “no dangers of intrusion on the authority and functions of the Executive Branch.” This imprecise standard aggrandizes the power of the court because judges will now control the determination of what constitutes a “core” or lesser executive power and whether prosecution would endanger executive functioning. In reaching this conclusion, the court dismissed the need for administration of criminal justice, even though this factor affected prior rulings, including Nixon v. United States, which required the sitting president to turn over the Watergate Tapes.

The court also jeopardizes prosecution of crimes arising out of unofficial conduct, holding that prosecutors cannot present evidence regarding official conduct even when used to prove guilt on an indisputably prosecutable claim. Consider a situation in which a president accepts a bribe to issue a pardon. Issuing a pardon is a core presidential function shielded by absolute immunity. Bribery, however, is unofficial conduct and a federal crime. Bribery is also an explicit basis for impeachment and removal from office. The court’s ruling, however, would bar prosecutors from introducing evidence of circumstances surrounding the pardon, because this evidence would probe decisions related to core executive authority. Future prosecutors will face high, even insurmountable, barriers in trying a president for bribery or other crimes if inculpatory evidence requires scrutinizing the president’s decision to exercise core executive authority.

This outcome places the president above the law. Indeed, it is arguable that this standard would have immunized President Richard M. Nixon (after he resigned and before President Gerald Ford’s pardon) for conspiring with executive staff to cover up the Watergate burglary. Most of the evidence of this crime was contained in secret recordings between the president and high-level executive officials. Though immunity does not extend to the president’s participation in a criminal conspiracy, powerful evidence of the crime would be arguably inadmissible under the court’s standard.

The court left a lot of room for argument that its ruling is politically motivated. Even before this case, many people accused the justices of delaying a decision in order to ensure that the federal prosecution would not occur prior to the election. Regardless of the legitimacy of these assertions, the court will have a difficult time shaking the appearance of partiality.

Despite the negative consequences this ruling could have on the enforcement of federal criminal law and presidential accountability, the court dismissed these compelling concerns as meritless. Chief Justice John G. Roberts Jr. curtly rejected thoughtful arguments made by Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson (and, to some extent, Justice Amy Coney Barrett). Roberts downplayed their analysis as hysterical blather, claiming “they strike a tone of chilling doom that is wholly disproportionate to what the court actually does today.”

If power creates blind spots, then the emboldened conservative supermajority will continue to rewrite and distort precedent without regard to any long-term damage to the court as an institution, individual rights and our political system.

Darren Lenard Hutchinson is the John Lewis Chair in Civil Rights and Social Justice and professor of Constitutional Law at Emory University School of Law.