The King Above the Law: Trump’s Absolute Immunity From Criminal Prosecution
Legal analysis on how the Supreme Court has amplified the power of the United States President
The District Court of Columbia indicted Trump on four criminal counts derived from the steps he allegedly took to change the result of the 2020 presidential election.
Subsequently, he filed a motion to dismiss the indictment on grounds of Presidential immunity. The District Court denied Trump’s motion, and the Court of Appeals for the District of Columbia Circuit affirmed.
In a divided 6–3 ruling, the Supreme Court has recently declared that Donald Trump, as well as any current, former, or future US president, enjoys “absolute immunity” for actions taken within their constitutional authority.
Presidential immunity
This issue was analyzed in Nixon v. Fitzgerald, where the Supreme Court clarified that, in the civil context, a former President is completely immune from civil liability for official acts. This includes any conduct that falls within the “outer perimeter of his official responsibility”.
Further, this immunity is entrenched in the constitutional doctrine of the separation of powers, and it has been placed to prevent the diversion of the President’s energies by concern with private lawsuits, which pose a significant risk of impeding the effective functioning of government.
The DC Circuit Court’s opinion
The Circuit Court elaborated in its opinion that in this criminal case, former President Trump was treated as citizen Trump, with access to the same defenses as any other criminal defendant. Moreover, any executive immunity that may have shielded him in his capacity as President, can no longer be used as protection in this prosecution. It was noted that:
It would be a striking paradox if the President, who alone is vested with the constitutional duty to “take Care that the Laws be faithfully executed,” were the sole officer capable of defying those laws with impunity.
It was concluded that functional policy considerations stemming from the structure of the US government, do not immunize former Presidents from criminal prosecution. This opinion was generally well received, and the reasoning can be easily comprehended.
The Supreme Court’s opinion
Presidents cannot be indicted based on conduct for which they are immune from prosecution.
With this notion, the Supreme Court sent the case for analysis back down to the District Court to cautiously re-examine the indictment’s allegations not deemed to qualify for Presidential immunity, and to determine whether they also involve conduct for which a President must be immune from prosecution. This will be done under a newly established legal framework, set by this opinion.
Distinguishing official from unofficial acts
At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity.
The Supreme Court engaged in a separation exercise where the first step is to determine whether an act is official or unofficial.
Thereafter, official acts are subdivided into core official acts, for which absolute immunity is granted, and non-core official acts, for which there is presumptive immunity. US Presidents can graciously wield the latter immunity in US courts unless the Government can surpass the incredibly high threshold of demonstrating that applying a criminal prohibition to an act would “pose no dangers of intrusion on the authority and functions of the Executive Branch”.
The existence of this subdivision is questionable, as any prosecution of a President would pose at least some danger of intrusion on the authority of the Executive Branch, therefore deeming actions as non-core official acts, and activating the President’s immunity.
As for unofficial acts, there is no immunity, and a President may be criminally prosecuted.
Acts falling within the President’s “conclusive and preclusive” authority can neither be challenged by Congress nor be examined by the courts. Such acts include:
- Commanding the Armed Forces of the US.
- Granting reprieves and pardons for offenses against the US.
- Appointing public ministers and consuls, the Justices of the Supreme Court, and Officers of the US.
It was determined further, that official acts would qualify as “President’s acts within the outer perimeter of his official responsibility” which covers all actions “so long as they are not manifestly or palpably beyond [his] authority”. This extremely broad interpretation leaves barely any room to quantify what would be an unofficial act.
In the court’s opinion, presumptive immunity is required to “safeguard the independence and effective functioning of the Executive Branch” and “enable the President to carry out his constitutional duties without undue caution”.
Immunity with immense power and responsibility
An abundance of guidance is provided on what can be construed as an official act.
In contrast, there is virtually no guidance on what would be considered unofficial conduct. The only material example is when the President “speaks in an unofficial capacity — perhaps as a candidate for office or party leader”. In the dissenting opinion, Sotomayor J. commented:
The majority’s dividing line between “official” and “unofficial” conduct narrows the conduct considered “unofficial” almost to a nullity.
When distinguishing between official and unofficial conduct, courts are prohibited from investigating the President’s motives. Furthermore, courts cannot classify an action as unofficial solely because it allegedly violates a generally applicable law. Most notably, with this decision, evidence concerning acts for which the President has been deemed immune cannot be used in any criminal prosecution against him.
Sotomayor J. has expressed her resounding frustration with the inception of this framework:
This new official-acts immunity now “lies about like a loaded weapon” for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation. […]
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 a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune. […]
Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.
The Supreme Court majority has effectively amended the constitution, by creating an immunity that has never existed before, which will apply to all US Presidents for the foreseeable future, and there are no means to appeal this decision.
No matter where your affiliations may lie, this is a truly frightening development. This is not only due to the almost absolute prevention of the Government from holding any US President criminally liable, but also due to the uncertainty of how any US President make use of this “loaded weapon”.
