On April 25, the Supreme Court will hear oral arguments in Trump v. United States. The case, which grew out of Donald Trump’s effort to overturn his loss in the 2020 election, calls on the Supreme Court to determine to what extent, if any, a former president enjoys immunity from being prosecuted for committing allegedly criminal acts during his tenure in office and perhaps in the course of his official duties. Regardless of the decision, by persuading the Supreme Court to hear the case, Trump may have already achieved victory. If Trump prevails on appeal, the charges against him will be dropped, and if he loses, the Court’s decision may make concluding this case before the election impossible—a Trump goal.
On August 1, 2023, a federal grand jury indicted Donald Trump on four counts related to his actions following the 2020 election. He is charged with participating in a conspiracy to defraud the United States, by knowingly making false claims of election fraud with the aim of overturning the legitimate results of the 2020 presidential election; with conspiring to corruptly obstruct the certification of the presidential election results on January 6, 20211 and with conspiring to engage in actions that illegally interfere with voters’ rights to have their votes counted. Trump claims that whether or not he committed the charged crimes, he cannot be tried for them because no court may hold a former president accountable for any actions he took in his official capacity.
It would be naive to think that the justices’ political views will not affect their decisions in this case, but it would be equally wrong to think that the justices’ votes will be determined by their politics—making a Trump victory inevitable. Not only are justices’ political leanings intertwined with and affected by their views of the law, but also when the Court is defining the powers of the president, it typically seeks to maximize the number of justices who join the majority opinion. Chief Justice Roberts, in particular, seems to prioritize this concern. Efforts to achieve unity or something close to it fosters compromises on the language and reach of rulings.
The brief that Trump’s team filed might be characterized as throwing a number of arguments, none of which is necessarily persuasive, against a wall to see what sticks. This is not a bad strategy. Trump needs five votes to win. Even if eight justices rejected each of Trump’s arguments, if five justices were each persuaded by a different argument, Trump would receive the immunity he seeks.
The impeachment clause
Consider one of the arguments Trump emphasizes, the claim that presidents can only be tried criminally if they have first been impeached. This argument rests on the Constitution’s impeachment clause, which provides:
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.
Trump reads this language as implicitly providing that unless a president is first impeached and convicted for a crime he committed while in office, he cannot be tried in an ordinary court of law for that crime. This is not, however, what the language of the impeachment clause says. In fact, it can be read as saying almost the opposite; namely, that presidents are not above the law and may be tried for official actions that violate the criminal law. Under this reading, the language providing that presidents may be tried after having been impeached and convicted is there to make it clear that trying a president who has been removed from office after being impeached and convicted does not constitute double jeopardy. It follows from this that trying a president who has been impeached and acquitted is similarly not barred by double jeopardy.
On this issue, the government has the more persuasive case. Although Trump’s attorneys can cite some language around the time of the Constitution’s adoption which could be read as supporting their interpretation, the evidence from history lends far more support to the government’s position. In rejecting proposals that would have given presidents longer terms or more power, the Constitution’s drafters and advocates were clear in not wanting a chief executive who was like a king, whose person was inviolate because he was above the law.
Moreover, the impeachment clause applies not just to the president and vice president, but to numbers of federal officials. Two federal judges have been impeached and convicted by the Senate only after they had been prosecuted for the same crimes in ordinary courts of law. If impeachment and conviction were necessary precursors to facing criminal charges, the judges’ trials should never have happened. Similarly, one wonders why President Ford would have offered a pardon, which presupposes the commission of a crime, and why Nixon would have accepted one, if each did not believe that Nixon was vulnerable to criminal charges for his Watergate-related actions.2
In addition, it is interesting, though perhaps technically irrelevant, that when President Trump was impeached and tried in the Senate for his participation in the events of January 6, his attorneys argued that since his term in office had by then expired, the appropriate remedy was not a trial in the Senate on the counts of impeachment, but prosecution in a criminal case. A number of senators, who voted to acquit Trump when he was impeached for the events surrounding January 6, seem to have accepted this argument and indicated that they thought a criminal trial was the appropriate venue for assessing Trump’s conduct.
In addition to these legal and historical arguments, there is a strong argument from policy. In the oral argument at the circuit court, the question that gave Trump’s attorney the greatest difficulty was an inquiry into whether a president could order SEAL Team 6 to assassinate a political rival. Trump’s attorney tried to duck the question by saying that if a president gave such an order he would be speedily impeached and convicted, but when asked to assume that the president had not been impeached, he acknowledged that on his reading of the Constitution, even a president who had ordered the assassination of a political rival would have to have been impeached and convicted before facing a criminal trial.
Trump’s attorney’s response to the SEAL Team 6 question was not to dismiss it out of hand as something no president would do but was instead to argue that any president who ordered a rival’s assassination would be immediately impeached and convicted. Although one might hope for such an outcome, modern political tribalism raises doubts. We know that assembling a mob to interfere with the electoral vote count did not motivate enough Republicans to convict Trump on the charges the House brought. That those in Congress were themselves endangered by Trump’s actions also did not move most congressional Republicans, nor did Trump saying Mike Pence should be hanged, a bit of hyperbole that might have had tragic results. The Framers may have thought that the threat of impeachment would deter the most serious illegal presidential behavior. If this were ever true, the threat rings hollow now.3 Today, the threat of being prosecuted criminally after leaving the White House may be essential deterrence.
Inapplicable statutes
Trump argues that unless a criminal law specifically states that presidents are included in its bans, the law does not apply to presidential wrongdoing. Since the president is seldom specifically mentioned when crimes are defined, accepting this argument would mean that almost all criminal statutes exclude presidents.4 The argument is both novel and weak, especially in a nation which from the time of its founding has taken pride in the proposition that no person is above the law. Indeed, at the start of their deliberations, the framers rejected the possibility of creating a kingship in large part because kings were above the law. Even more telling is that accepting this argument guts the impeachment clause’s provision for trying presidents after they have been impeached and convicted. If most criminal laws don’t apply to presidents, no matter how serious the behavior that led to their removal from office, there would be no offense to try them for.
Marbury v. Madison
Trump’s arguments are not all as weak as several of those discussed above. One likely to receive the Court’s attention is the claim that Marbury v. Madison precludes trying former presidents for actions within the sphere of official discretion. Marbury is arguably the most revered case in American jurisprudence, for it was in Marbury that Chief Justice John Marshall claimed for the Supreme Court the authority to determine the constitutionality of executive and legislative branch actions. With respect to Trump’s argument, which has nothing to do with judicial review, Marshall wrote, in relevant part:
By the Constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion and is accountable only to his country in his political character and to his own conscience. To aid him … he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.
In such cases, [the officer’s] acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, … there exists … no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and, being entrusted to the Executive, the decision of the Executive is conclusive … This officer is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the Courts.
The government differs with Trump on the implications of the language cited above, especially the italicized portion, and on whether Marbury is controlling precedent. The government’s position is that the Marbury Court’s discussion of a sphere of unreviewable presidential discretion applies only to sitting presidents and that the italicized words should be read in this light. To bolster its argument, the government references cases where courts examined the legality of presidential actions despite the existence of presidential discretion. Trump’s brief seeks to avoid the implications of these cases by arguing that in each case, the court’s ruling was directed toward a subordinate and not the president. But Marbury too was a case where a subordinate rather than the president was the direct target of the Court’s intervention. The language Trump’s attorney cites reflects the Court’s view that a subordinate who is acting at a president’s direction stands in the president’s shoes.
The government also argues that the Constitution’s impeachment clause undercuts Trump’s Marbury–based argument, for even on Trump’s reading, the clause opens the door to the criminal prosecution of presidents who have been impeached and convicted. Nothing in the clause suggests that this is the case only if the presidential actions at issue in the impeachment were not discretionary.
Even if the Court were to side with Trump in its reading of Marbury, that would not be the end of the matter. Remaining issues would be whether the behaviors charged in the Trump indictments were both official governmental actions and discretionary. Some have argued that the question answers itself because presidents are bound by the law and have no discretion to break it. This argument is unlikely to persuade. Not only do presidents arguably have discretion to break some laws, but a president may not know whether laws will be broken when he commands a subordinate to take an action.
Article II Issues
Finally, Trump claims that to open a president up to criminal prosecution after he leaves office poses the danger of inhibiting presidential action to the point where it interferes both with the president’s exercise of his Article II powers and the constitutional scheme for the separation of powers. This is Trump’s strongest argument. If he wins a complete victory, it will probably rest on this rationale.
The argument on this issue is certain to involve an extensive discussion of Nixon v. Fitzgerald. Fitzgerald grew out of an incident in which Arthur Fitzgerald, who today we would call a whistleblower, found himself without a job after offending his superiors by testifying to cost of overruns in an Air Force procurement matter. Nixon, it appears, personally approved of a plan that eliminated Fitzgerald’s position, and Fitzgerald was not offered a comparable position in violation of certain military-related civil service protections he enjoyed. After Nixon left office, Fitzgerald sued Nixon and others for damages attributable to his dismissal. The Supreme Court held that two subordinates who had been involved in the dismissal had only a qualified immunity when sued for what they did, but, by a single vote, the Court held that former presidents enjoyed absolute immunity in civil cases for actions taken while they held office. The Court feared that if former presidents could be sued, they would be harassed by often meritless lawsuits, and that knowing they were personally vulnerable “could distract a President from his public duties to the detriment of not only the President… but also the nation…”
The Fitzgerald majority clearly stated that it was only addressing a president’s vulnerability to post-term civil suits and that its decision had no implications for whether former presidents enjoyed similar immunity from criminal prosecutions. Trump, however, believes that it does. Trump’s attorneys argue that if presidents are immune from civil suits, it follows almost a fortiori that they are immune from criminal prosecution because the threat of being criminally prosecuted is more terrifying than the possibility of having to pay money damages. The predictable result, they claim, is that presidents would be more intimidated than they are in civil cases in the exercise of their Article II powers. Building on Fitzgerald, Trump’s attorneys further argue that unless former presidents are immune from criminal liability, they might be harassed not only by their successors in office but also by politically motivated district attorneys in the various states.
The government’s response emphasizes laws and precedent. They note that judges who, like the president, are absolutely immune from civil lawsuits based on official actions enjoy no immunity from criminal prosecution. They also point to language in the Constitution that protects members of Congress from being prosecuted for anything they say in the course of a congressional speech or debate. The argument is that since the Constitution’s framers knew how to immunize government officials from criminal prosecution and in fact did so, their failure to provide for presidential immunity reflects a judgment that presidents can be prosecuted for crimes they commit in the course of their official duties. Finally, their assessment of what the differences between civil lawsuits and criminal prosecutions imply is the opposite of that offered by Trump’s attorneys. The government argues that criminal prosecutions implicate the public interest to a far greater extent than civil litigation. Relatively speaking, the costs of immunizing former presidents from civil lawsuits are small even if deserving individuals cannot recover damages, but letting serious crimes go unpunished imposes substantial costs on the nation.
These aspects of the government’s response to the implications of Fitzgerald are well-argued, but the government’s response to Trump’s Article II and separation of powers arguments is weak, probably the weakest part of the government’s brief. They dismiss in a footnote the suggestion that without immunity former presidents may be pursued and harassed by state prosecutors. They support the summary dismissal of this argument by pointing to language in Trump v. Vance holding that the Constitution’s supremacy clause prevents state prosecutors from interfering with a president’s official duties. The problem with this response is that the government has argued throughout its brief that former presidents may be prosecuted for past crimes because they are no longer performing official duties.
The government replies in more detail to the suggestion that without immunity presidents may seek to prosecute their predecessors in office, but their response is not fully convincing. It downplays possible threats by arguing that the criminal justice process has many safeguards against unjustified prosecutions, like the need for indictment by a grand jury and the requirement of proof beyond a reasonable doubt, which the civil law system lacks. Yet, although in theory the criminal justice process is replete with protections for the innocent, the system often falls far short of the ideal. Moreover, even if the criminal process’s safeguards worked as intended, mounting a successful defense can be costly. The government is on firmer ground when it points to the ability of Article III courts, including the Supreme Court, to invalidate politically motivated prosecutions. Still, no person, whether president or plumber, wants to be tried for a crime.
The Meese brief
Ed Meese, Ronald Reagan’s Attorney General, has submitted an amicus brief in which he argues that the special counsel prosecuting the case was, for several different reasons, not properly appointed. If the Court wanted to avoid deciding the difficult constitutional questions the case poses, it could reach out and dispose of the issue by accepting Meese’s argument or, without deciding the issue, it could remand the case to the trial court to assess Meese’s objections. Ducking the presidential immunity question in one of these ways seems unlikely, but it could happen.
Interestingly, when asked during oral argument in the circuit court whether he would like to address the issues Meese raises, Trump’s counsel declined the invitation. I expect the invitation was declined for strategic reasons. If the Court finds that former presidents are not immune from prosecution for crimes committed while in office, it will remand the case to the district court for trial. At that point, Trump can challenge the special counsel’s authority to indict and try him. Should his challenge be denied, as it almost certainly would be, he might then seek another interlocutory appeal to resolve this issue. Whatever might happen on appeal, the 2024 election will be long past. Perhaps Trump will be tried then if he has lost, though the current urgency will be lacking. If Trump has won, he will avoid any trial for at least four years, and whether he will be pursued for actions he took eight years before is doubtful.
More to come?
Trump v. United States may appear to leave the Court with a binary choice: Either Trump can be tried on the charges made in the indictment or he has immunity and the government’s case must be dismissed. If the Court holds that former presidents may be prosecuted for their arguably official actions, the case will proceed to trial. But even if the Court finds that presidents may not be tried for actions taken as president, there is likely to be further litigation. Any grant of immunity will almost certainly apply only to a president’s official actions. Although Trump’s Supreme Court brief repeatedly assumes that the actions Trump took to reverse the 2020 election results were official presidential actions, this is not clear. If the Supreme Court upholds Trump’s argument for immunity, it is nevertheless unlikely to terminate the prosecution. Rather, it will return the case to the trial court for a determination of whether Trump’s allegedly criminal actions were done in his private capacity as a candidate for election or in his public capacity as a president charged with taking care that the laws are faithfully executed. It would be ironic if a court were to find that Trump could not be prosecuted for alleged law-breaking because challenging the validity of election results accorded with his duty to take care that the nation’s laws are faithfully executed.
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