Supreme Court of the United States (SCOTUS): In a monumental decision where for the first time in American history, the SCOTUS had to consider a former US President’s (Donald Trump) immunity from criminal prosecution for official acts during his Presidency; the Full Bench of the Court with a ratio of 6: 3 held that, under US constitutional structure of separated powers, the nature of Presidential power entitles a former President to Absolute Immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.
“Enduring separation of powers principles guide our decision in this case. The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But under our system of separated powers, the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts. That immunity applies equally to all occupants of the Oval Office”.
Background and Legal Trajectory: Former US President Donald Trump had been indicted by a federal grand jury on four counts for conduct that occurred during his Presidency following November 2020 Presidential Elections.
The indictment alleged that after losing that election, Donald Trump conspired to overturn it by spreading knowingly false claims of election fraud to obstruct the collecting, counting, and certifying of the election results. Trump moved to dismiss the indictment based on Presidential immunity, arguing that a President has absolute immunity from criminal prosecution for actions performed within the outer perimeter of his official responsibilities, and that the indictment’s allegations fell within the core of his official duties.
The District Court denied Trump’s motion to dismiss, holding that former Presidents do not possess federal criminal immunity for any acts. The D. C. Circuit affirmed. Both the District Court and the D. C. Circuit declined to decide whether the indicted conduct involved official acts.
Dissenting Opinion: In the Full Bench of 9 Judges, 6 Judges concurred that former US Presidents have absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority whereas 3 Judges namely, Justice Sonia Sotomayor*, Justice Elena Kagan and Justice Ketanji Brown Jackson** expressed a strong dissent.
Sotomayor, J., observed that majority’s decision to grant former Presidents immunity from criminal prosecution reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. “Relying on little more than its own misguided wisdom about the need for “bold and unhesitating action” by the President, the Court gives former President Trump all the immunity he asked for and more. Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent”.
She noted that the majority invented immunity through brute force and the main takeaway of the decision is that all of President’s official acts, defined without regard to motive or intent, are entitled to immunity. “Whenever the President wields the enormous power of his office, the majority says, the criminal law (at least presumptively) cannot touch him”.
Justice Sotomayor opined that the US Constitution’s text contains no provision for immunity from criminal prosecution for former Presidents. She pointed out that the framers of the Constitution clearly knew how to provide immunity from prosecution. They did provide a narrow immunity for legislators in the Speech or Debate Clause; however, they did not extend the same or similar immunity to Presidents.
Sotomayor, J., pointed out that the Impeachment Judgment Clause presumes the availability of criminal process as a backstop by establishing that an official impeached and convicted by the Senate “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law”. That Clause clearly contemplates that a former President may be subject to criminal prosecution for the same conduct that resulted (or could have resulted) in an impeachment judgment.
Sotomayor, J., further stated that nothing in American history, supports the majority’s entirely novel immunity from criminal prosecution for official acts. She invoked Alexander Hamilton who had stated that in contrast to the King (of Britain), the President should be subject to “personal responsibility” for his actions, “standing upon no better ground than a governor of New York, and upon worse ground than the governors of Maryland and Delaware,” whose State Constitutions gave them some immunity. Referring to other commentators during the framing of the Constitution, Sotomayor, J., pointed out that from the very beginning, the presumption has always been that no man is free to flout the criminal law. “The majority fails to recognize or grapple with the lack of historical evidence for its new immunity. With nothing on its side of the ledger, the most the majority can do is claim that the historical evidence is a wash”.
“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”.
Remarking that the majority has replaced a presumption of equality before the law with a presumption that the President is above the law for all his official acts, Sotomayor, J., stated that the majority’s dividing line between “official” and “unofficial” conduct narrows the conduct considered “unofficial” almost to a nullity.
Sotomayor, J., pointed out that the majority relies almost entirely on its view of the danger of intrusion on the Executive Branch, to the exclusion of the other side of the balancing test. Its analysis rests on a questionable conception of the President as incapable of navigating the difficult decisions his job requires while staying within the bounds of the law. It also ignores the fact that he receives robust legal advice on the lawfulness of his actions. The majority’s bare assertion that the burden of exposure to federal criminal prosecution is more limiting to a President than the burden of exposure to civil suits does not make it true, and it is not persuasive.
She cautioned that the decision to grant former Presidents immunity for their official acts is deeply wrong. As troubling as this criminal immunity doctrine is in theory, the majority’s application of the doctrine to the indictment in this case is perhaps even more troubling. In the hands of the majority, this new official-acts immunity operates as a one-way ratchet. The majority’s single-minded fixation on the President’s need for boldness and dispatch ignores the countervailing need for accountability and restraint. “Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop”.
Ketanji Brown Jackson, J., stated that it is indisputable that immunity from liability for wrongdoing is the exception rather than the rule in the American criminal justice system. That is entirely unsurprising, for the very idea of immunity stands in tension with foundational principles of our system of Government. It is a core tenet of American democracy that the People are the sovereign, and the Rule of Law is the first and final security.
Jackson, J., noted that American Government has long functioned under an accountability paradigm in which no one is above the law; an accused person is innocent until proven guilty; and criminal defendants may raise defenses, both legal and factual, tailored to their particular circumstances, whether they be Government officials or ordinary citizens. For over two centuries, American Nation has survived with these principles intact. “(…) it becomes much easier to see that the majority’s ruling in this case breaks new and dangerous ground. Departing from the traditional model of individual accountability, the majority has concocted something entirely different: a Presidential accountability model that creates immunity—an exemption from criminal law—applicable only to the most powerful official in our Government”.
She pointed out that majority’s multilayered, multifaceted threshold parsing of the character of a President’s criminal conduct differs from the individual accountability model in several crucial respects. For one thing, it makes it next to impossible to know ex ante when and under what circumstances a President will be subject to accountability for his criminal acts. The majority’s new Presidential accountability model is also distinct insofar as it accepts as a basic starting premise that generally applicable criminal laws do not apply to everyone in our society. In the majority’s view, while all other citizens of the United States must do their jobs and live their lives within the confines of criminal prohibitions, the President cannot be made to do so; he must sometimes be exempt from the law’s dictates depending on the character of his conduct.
“Ultimately, the majority’s model simply sets the criminal law to one side when it comes to crimes allegedly committed by the President. Before accountability can be sought or rendered, the Judiciary serves as a newfound special gatekeeper, charged not merely with interpreting the law but with policing whether it applies to the President at all”.
She also pointed out that under the majority’s new Presidential accountability paradigm, what a prosecutor or jury does may not even matter. Whether a former President will be entirely exempted from the dictates of the law (such that the roles of other participants in the criminal justice process become irrelevant) requires a judicial assessment, in the first instance of his criminal conduct and the circumstances under which he acted. “Unlike a defendant who invokes an affirmative defense and relies on a legal determination that there was a good reason for his otherwise unlawful conduct, a former President invoking immunity relies on the premise that he can do whatever he wants, however he wants, so long as he uses his “‘official power’” in doing so”.
Jackson, J., cautioned that “What is left in its wake is a greatly weakened Congress, which must stand idly by as the President disregards its criminal prohibitions and uses the powers of his office to push the envelope, while choosing to follow (or not) existing laws, as he sees fit. We also now have a greatly empowered Court, which can opt to allow Congress’s policy judgments criminalizing conduct to stand (or not) with respect to a former President, as a matter of its own prerogative.
Jackson, J., pointed out that to the extent that the majority’s new accountability paradigm allows Presidents to evade punishment for their criminal acts while in office, the seeds of absolute power for Presidents have been planted. “And, without a doubt, absolute power corrupts absolutely”.
[Donald J. Trump v. United States, No. 23—939, decided on 01-07-2024]
*Justice Sonia Sotomayor delivered the dissenting opinion, which was joined by Kagan and Jackson, JJ.
**Justice Ketanji B. Jackson also filed a dissenting opinion
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