The Supreme Court Tees up Trump’s Immunity Claim
March 25, 2024
Although it has been widely assumed that any president, after they leave office, has some kind of legal immunity from criminal charges based on actions he takes as president, the Supreme Court has never actually decided this question.
When the DC Court of Appeals was beginning its inquiry into the issue, Donald Trump’s lawyer told the court that a sitting president was entitled to immunity even if he directs Seal Team Six to shoot one of his political adversaries. Although this demonstrates that the field was wide open, the Court of Appeals ultimately found little basis for immunity.
Nevertheless, the Supreme Court seems to believe that the issue should be seriously addressed at this point. Shortly after reviewing the appellate court’s 50-page opinion on presidential immunity the Court framed the following question as the issue it wants to resolve: “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
This single sentence contains the key to what the immunity debate is about. First, the Court was clear that if immunity is to be available in the Trump case, it must be available only for “official acts”—that is, acts that come within the president’s authority under the Constitution. So, unless directing Seal Team Six to shoot one of his political opponents can be conceived as an “official act,” the President won’t receive immunity for doing it. Nevertheless, what exactly are “official acts” that, when performed by a president, will not expose him to criminal liability after he leave office?
Let’s consider the Court’s question in relation to what we know Donald Trump actually did in his January 6 intervention in the 2020 election. There’s a lot in President Trump’s indictment for election interference that still has to be proved, but there is plenty that is publicly known.
In the weeks before January 6, 2021, the date on which the Electoral Votes from the states were to be counted at the Capitol by Vice President Pence, President Trump began to press the Vice President —who has the responsibility under the Constitution for opening and counting the electoral ballots–to set aside the ballots from several states that Trump falsely claimed he had won in the 2020 election. We know this is true because the former Vice President has told the story publicly many times.
If Pence had obeyed Trump, and set aside these ballots, neither Trump nor Joe Biden would have had a majority in the Electoral College, which would mean that neither of them had won the 2020 election. This would have enabled Trump to argue that, while he hadn’t won, he certainly hadn’t lost, and thus remained the elected president. This would have immediately created a constitutional crisis, which would probably be continuing today.
So the question here is whether Trump’s intervening in the electoral process could conceivably be part of his official duties. If so, the Supreme Court would provide immunity; if not, he could be liable for criminal punishment.
The argument for presidential immunity has always revolved around whether the president might be kept from doing what he thinks would be best for the country by a concern that he might be subject to criminal charges when he leaves office.
If the Court adopts a rule that says that a president is entitled to immunity when he is performing presidential duties, that would cover this question, but it relies on an assessment of something difficult to pin down—what activities are within the scope of the president’s duties?
Trump’s effort to influence the counting of the states’ electoral votes raise a particularly difficult question. It is not obvious that he has any role the electoral process under the Constitution, and a good deal of evidence—for example, the choice of the Vice President (who is President of the Senate) to do the counting—that he was not expected to participate to any significant degree.
Yet it is highly likely that he will argue that the requirement in Article II—that “he shall take Care that the Laws be faithfully executed”—is broad enough to provide a basis for his intervention in the electoral vote counting in 2020.
Whatever the ultimate answer, it will provide important guidance to presidents in the future about where their actions could bring about criminal liability after they leave office, and where they will not. To a substantial degree, it will alleviate concerns about where the line will be drawn.