On July 1, 2024, the Supreme Court released its bombshellopinion in Trump v. United States. No one expected the six-justice Republican majority to reconstruct the office of the presidency by expanding presidential immunity. The opinion is a major victory for enhanced presidential power at the expense of presidential accountability.
Under this landmark ruling, a president receives no immunity for unofficial acts. There is absolute immunity for official conduct when exercising a core constitutional presidential power, like firing a subordinate or issuing a pardon. The devil is in the details with all other presidential actions. For the first time, there is a “presumptive immunity” enabling a president to escape prosecution. To overcome this presumption, a prosecutor must prove that filing charges would pose “no dangers of intrusion on the authority and functions of the Executive Branch.”
Within this broad framework, the Supreme Court declined to make specific findings on immunity regarding any of former president Trump’s behavior, which has led to criminal indictments. Instead, the lower courts must now hold evidentiaryhearings on each of the criminal counts filed against Trump. The trial judge will then decide whether the prosecutor has proven an act to be unofficial conduct or has overcome the presumption ofpresidential immunity for official acts.
The Supreme Court added an impediment for prosecutors in thatthey cannot introduce “any evidence of conduct that would be an official act.” This evidence ruling will even affect Trump’s felony conviction in the New York State hush money case. Someevidence introduced at the NYC trial involved conduct by Trump while he was in office.
Whatever the lower court’s rulings on presidential immunity, the decisions will no doubt again end up before the Supreme Court. Prosecuting a former president will now be a tedious slog with years of appealable pretrial motions to determine what conduct is immune before an actual trial can begin.
To understand presidential immunity it may help to first view the subject through a wider, international lens. Oona Hathaway, professor of International Law at Yale Law School, recently wrote an excellent essay for Foreign Affairs magazine titled, For the Rest of the World, The U.S President Has Always been Above the Law. Ms. Hathaway explains “For decades, American presidents have waged illegal wars, plotted to assassinate foreign leaders, unlawfully detained and tortured people, toppled democratic governments, and supported repressive regimes without legal accountability.”
Ms. Hathaway argues that Americans have lived in a bubble when it comes to domestic presidential actions. The Supreme Court in Trump v. United States has burst this bubble. She concludes, “There is the potential to make a president’s actions within the United States just as unchecked as they are outside it.”
Now that a presumptive presidential immunity applies to all domestic actions, what effect will this have on Americandemocracy? To present the progressive view there is an analysis by Sean Wilentz, Professor of American History at Princeton. Writing for The New York Review of Books, he views Trump v. United States as “The Dred Scott of our Times.” Wilentzconcludes that the decision, “Radically changed the very structure of American democracy, paving the way for MAGA authoritarianism just as the 1857 Supreme Court in Dred Scott v.Sandford tried to pave the way for enshrining slave power control over American law and government.”
Wilentz fears that the new immunity protection “repudiates the foundational principle of the rule of law.” He is concerned that a Trump election victory would “unleash a scorched-earth assault on the existing constitutional and institutional order.” Wilentzreminds the reader “The Supreme Court is supposed to be independent of politics but has once again willfully placed itself at the center of a presidential election on which the future of American democracy turns.”
To present the conservative view, I turned to Jack Goldsmith, the Learned Hand Professor at Harvard Law School. Writing in Lawfare, Goldsmith does not believe the Supreme Court was eager to rule on presidential immunity or that the decision was intended to place a King in the oval office.
Goldstein’s analysis starts with Article II of the Constitution. He finds that, “The great paradox of the American presidency is that the same constitutional provisions that render the president beholden to law also endow the presidency with extraordinary power and discretion to interpret and enforce the law, and thus give an unscrupulous president tools to abuse the law.”
The Supreme Court decision “enhances presidential power far beyond what was previously settled.” Goldstein points out thatin reaching this result; the court was more worried aboutsuccessive presidents who would be free to prosecute their predecessors if they did not have immunity, than they were of an out-of-control corrupt president. He ends his essay with the thought, “It has been a fantasy for many years now to think that the courts and prosecutors can purge the nation of a law-defiant populist demagogue. Only politics (elections, impeachment) can do that.”
The legal system may ultimately determine that no presumption of immunity protects Trump from his serious crimes. As one hopeful example, Trump has stated in numerous legal documents that he was acting in his personal capacity as a candidate, not as president, following the 2020 election.
America’s best protection against unchecked presidential criminality rests on the character of those we choose to place in the White House. Vote to protect democracy on November 5.
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