A Decision of Surpassing Recklessness in Dangerous Times

The United States has gone for two-and-a-half centuries without a constitutional rule concerning presidential immunity, and it has been able to do so for a very simple reason: Most presidents aren’t criminals and don’t use their official functions to commit crimes.

The question of whether a president has some form—and if so, what form—of immunity for official acts thus hasn’t come up much. Where presidents have broken the law, the country has resolved the matters by means other than criminal charges. We saw a pardon in the case of Richard Nixon, and we saw a negotiated resolution short of prosecution in the case of Bill Clinton. In some cases, we just looked the other way. And the country and its presidency moved on.

Had it come outside the context of the once and possibly future presidency of Donald J. Trump, the Supreme Court’s decision Monday in Trump v. United States would still have been wrong, and it would still have been objectionable, and it would still have been dangerous.

But it would have been dangerous primarily in a hypothetical kind of way. It would have made it more likely that some future president might theoretically take this doctrinal tiger and ride it into a life of official crime without fear of repercussions. It would have made it more likely that some president might find in the Supreme Court’s ruling a license to corruption or a license to wield enhanced substantive power, because no law—or chains—could bind him or her.

But these dangers, though real, would have been somewhere off in the future. They might never come to be. And the United States, after all, has lots of constitutional law that, exploited by bad people, could theoretically produce bad outcomes.

The Supreme Court’s decision, however, does not come decontextualized in a casebook. And it is not, however much the justices of the majority may pretend otherwise, about the presidency in the abstract. Of course, it also affects the presidency in the abstract—and all future presidents who wield its powers. But this is a case about a particular man in interaction with the presidency. And those actions are not all in the past tense.

It is a case in which the Supreme Court was asked whether it wanted to enable Trump’s avowed authoritarianism in a future presidency by disabling his prosecution for crimes committed in his prior presidency. 

It is, in other words, about some very immediate—and very non-hypothetical—dangers.

And it comes at a very specific political moment: Trump is currently leading in most polls. According to Nate Silver’s forecast, he has a 71 percent chance of winning the election in November. That chance is only 51 percent if you prefer the 538 forecast. But he’s the current front-runner by any reasonable measure. His opponent’s campaign is in no small turmoil following Joe Biden’s disastrous performance in last week’s debate. Trump is, in short, the single most likely person in the world to wield the powers of the American presidency come Jan. 20, 2025.

He is also a convicted criminal—no small matter when one is writing a “rule for the ages” about prospective presidential impunity, as Justice Gorsuch put it during oral arguments. The court majority may flatter itself that it’s staying out of politics. But this is a fairy tale the justices are telling themselves—if they are, in fact, telling themselves this pleasant little tale. In fact, they are handing a powerful immunity to an adjudged felon who may be about to assume “the executive power” of the United States, and they are doing it by corroding—and perhaps rendering impossible—accountability for his past crimes.

There’s another sense in which the Supreme Court has failed here: It has articulated a set of standards for presidential immunity that are utterly opaque. The most fundamental job of an appellate court, even when it’s articulating an objectionable principle, is to give actionable guidance to lower courts. The Court in this case has not done this. Reading the opinion alongside the indictment, it is completely unclear how to apply it to the instant case along a number of different axes and with respect to a number of different allegations.

This task the majority remands to the district court—with Trump careening towards the presidency—and it does so reserving for itself another round of interlocutory appeal before the matter can proceed to trial.

The Error! The Error!

The notion that there is some form of presidential immunity for some official acts—or at least some constitutional limit on Congress’s authority to criminalize the conduct of presidential acts—is not horrible in and of itself. Whether one calls this a limitation on Congress’s legislative authority or calls it a presidential “immunity” is a largely semantic distinction, though it’s a semantic distinction with an important procedural consequence. If we think of this protection for presidential action as merely a constitutional limitation on congressional power, it doesn’t convey an interlocutory appeal to a former president charged with a crime, whereas if we call it an immunity, these issues have to be resolved pre-trial.

Had the Court merely contended that there is some irreducible core of presidential conduct that Congress cannot regulate, this likely would have been an uncontroversial decision, perhaps garnering unanimity as even the dissenters seem to concede it. Moreover, it would not either have gravely encumbered the prosecution or handed Trump a loaded weapon should he return to office.

But the Court went a lot further.

It held that with respect to all other official presidential acts, there is at least a presumption of immunity and there may be absolute immunity as well. The Court isn’t telling just yet which it is, writes Chief Justice John Roberts: “we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient.”

This immunity may, or may not, be overcomable by the prosecution to the extent it can show that “applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’” 

With respect to unofficial conduct, the former president has no immunity, but the Court offers Trump an Easter egg here as well: “In dividing official from unofficial conduct,” Roberts writes,  “courts may not inquire into the President’s motives. Such an inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II interests that immunity seeks to protect.”

As an example of the absurdity of this proposition, imagine a hypothetical only one shade from something that actually happened. Imagine that Trump as president had offered Ukrainian President Volodymyr Zelensky a frank bribe, instead of using the word-salad he gave in his “perfect” phone call with the Ukrainian leader. Imagine for example that he had said, “I will give you $10 billion in military aid if you deliver me dirt on Joe Biden.” Such an offer would be a crime if it were a corrupt offer meant to dig dirt on a rival; but if the president were earnestly concerned about, say, protecting national security and believed that “the dirt” referred to something genuinely sinister, this might be a defensible exercise of the president’s Take Care Clause responsibilities. The difference is purely one of intent and motive.

Yet under this ruling, Trump would likely be immune whether he did this for the most venal of personal reasons or the most noble, good faith reasons of state. A court could not even consider the motive in assessing whether immunity attaches to the act. 

The Court went further still. Not only is the former president absolutely or presumptively immune for all official acts in the sense that he cannot be charged with them as crimes, he is immune from their use as evidence against him in a prosecution for some other crime. As Roberts writes, “If official conduct for which the President is immune may be scrutinized to help secure his conviction, even on charges that purport to be based only on his unofficial conduct, the ‘intended effect’ of immunity would be defeated.” The result is that the president is at least presumptively immune and maybe absolutely so for taking a bribe in exchange for some official act, because the evidence of the official act could never be used. Justice Amy Coney Barrett notably declined to join this portion of the opinion, writing that “The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable.”

If this all sounds less than coherent, as well as dangerously enabling, that’s because it is both.

Error Exacerbated by Incoherence

Even if you accept the majority’s three-category system for slicing and dicing presidential conduct, the problems begin as soon as you start to try to distinguish between the different categories. The borders of each are remarkably ill-defined.

Consider the distinction between Categories One and Two. Roberts explains that Category One comprises actions within the president’s “conclusive and preclusive” power; it does not include “conduct in areas where [the president’s] authority is shared with Congress.” As examples, he points to the president’s authority to grant pardons, recognize foreign countries, remove officials whom he has appointed under the Appointments Clause, and engage in “investigative and prosecutive decision-making.” For this reason, Roberts carves out as immunized the portion of the Jan. 6 indictment concerning Trump’s efforts to appoint Jeffrey Clark as attorney general in order to direct the Justice Department to investigate alleged election fraud.

But where exactly does the “exclusive sphere” of presidential authority that receives absolute immunity move into the more ambiguous zone of conduct for which immunity may–or may not be–only presumptive? Roberts spends almost no time on this point.

Yet consider a string of hypotheticals raised by Justice Sonia Sotomayor in her dissent:

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.

Roberts does not directly address any of these hypotheticals in his opinion, choosing instead to mock the dissents’ “tone of chilling doom.” So we are left on our own in sorting through where exactly the conduct described by Sotomayor would fall. As to taking a bribe in exchange for a pardon, it seems clear—under the examples that Roberts himself provides—that this would fall into Category One and receive absolute immunity. To make matters more confusing, Roberts oddly suggests in a footnote that the prosecution might use the public record to establish the fact of the official act.

What about ordering Seal Team Six to assassinate a political rival or organizing a military coup? Both these activities would fall under the president’s Article II authority as commander in chief. But is that authority “conclusive and preclusive”? It’s hard to say and it depends on context. After all, Congress has established the Uniform Code of Military Justice to govern permissible conduct by members of the military, and Congress may also constrain the president’s offensive use of military power.

But then again, Congress has also produced legislation in areas that touch on the Appointments Clause—such as the requirement that the president must appoint someone “learned in the law” to serve as solicitor general. Yet Roberts identifies the Appointments Clause and the president’s power over firing principal officers at the Justice Department as an area of core authority protected with absolute immunity. Where exactly does this leave us?

When the Seal Team Six hypothetical first arose during oral argument at the D.C. Circuit and then at the Supreme Court, commentators pointed to it as an example of the dangerous extremes of presidential power that Trump’s arguments could result in. George Conway described the admission by Trump’s counsel that such an order would constitute an official act as equivalent to walking into a “nasty trap.” And yet it is far from obvious that such conduct would not be immune under the Supreme Court’s reasoning. It’s clearly an official act, after all, and it would therefore be at least presumptively immune and maybe absolutely immune. And depending on how one interprets the Commander in Chief clause, it could be argued to be a conclusive and preclusive power. Nobody else, after all, is allowed to command the military, and Congress is famously not allowed to order the president which hill to take.

So that’s the porous border between Categories One and Two. What about the border between Two and Three? Presidential conduct moves beyond the outer perimeter and into activity unprotected by presidential immunity when it is “manifestly or palpably beyond [the president’s] authority,” Roberts writes. But remember that in “dividing official from unofficial conduct, courts may not inquire into the President’s motives”—nor may they “deem an action unofficial merely because it allegedly violates a generally applicable law.” What’s more, “some Presidential conduct … certainly can qualify as official even when not obviously connected to a particular constitutional or statutory provision.” 

“Distinguishing the President’s official actions from his unofficial ones can be difficult,” Roberts notes helpfully. Some examples. Roberts points to the component of the Jan. 6 indictment that focuses on Trump’s efforts to bully Vice President Mike Pence into upending the electoral count. This, according to the majority, falls into Category Two: “Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct.” But what about the fact that Pence was presiding over the activities of the Senate, as part of a process established by the Constitution as the role of Congress without any role for the president? The majority identifies this as one reason why the prosecution might be able to rebut the Category Two presumption of immunity. But couldn’t one just as easily argue that this should place Trump’s conduct towards Pence in Category Three to begin with? After all, the two men are talking about Pence’s exercise of his powers in an area in which Trump has no constitutional role and is operating as a candidate, not as an official. It’s certainly within Pence’s official responsibility, but why is it within Trump’s, unless we can say the same for any matter of public moment?

Likewise, the majority suggests that Trump’s involvement in the fake electors scheme is entitled to presumptive immunity because, in Trump’s view, “it was undertaken to ensure the integrity and proper administration of the federal election,” under the president’s constitutional authority to faithfully execute the laws. In her concurrence, though, Justice Amy Coney Barrett argues that this conduct is “private and therefore not entitled to protection” because “a President has no legal authority—and thus no official capacity—to influence how the States appoint their electors.” The fact that the majority itself cannot agree on how to apply its own standard is not encouraging. Nor is the majority’s vastly expansive view of where the outer perimeter lies. Under this logic, it is not at all clear why, say, the president denying an allegation of rape by E. Jean Carroll would not be considered an official act, since he’s commenting on a matter of public interest that could undermine the public’s confidence in his leadership and administration. And what about if, during a second term, he groped Italian Prime Minister Giorgia Meloni while attending the G7?

Even for conduct firmly within Category Two, how exactly are prosecutors meant to rebut the presumption of immunity that the Court has established? This question has both substantive and procedural elements. The government, Roberts writes, must “show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’” It’s difficult, though, to determine how precisely to apply that standard, especially given the majority’s hawkish approach to policing any conceivable limit on executive power. The two of us would not previously have imagined that pressuring Pence might fall into this category to begin with—how are we supposed to gauge whether criminalizing such conduct would intrude on presidential power?

Moreover, it is completely unclear from the opinion what kind of litigation procedure might address this question. Is it purely a question of law in which the district court is to take as true the allegations in the indictment? Or are the parties to call witnesses and develop a record on which the court then rules? What if there are disputed questions of fact?

We could go on. The bottom line is that the Court has created a profoundly muddled test that provides woefully insufficient guidance for lower courts—and for Judge Tanya Chutkan’s court in particular. In doing so, the majority also extinguishes whatever vestige of deterrence might have remained for presidents considering using their office as a shield for criminality. The standards set out in this opinion are so vague that an enterprising defendant could contort them in all kinds of ways, particularly given the limitations on inquiry into motive and available evidence. It’s hard to imagine that a president would, in light of this, be much discouraged by the ever-dimmer prospect of criminal liability.

“The Nature of the Person" 

In his speech last night in reaction to the decision, President Biden made a revealing remark:

[W]ith today’s Supreme Court decision, . . . it will depend on the character of the men and women who hold that presidency that are going to define the limits of the power of the presidency, because the law will no longer do it. I know I will respect the limits of the presidential power, as I have for three and a half years. But any president, including Donald Trump, will now be free to ignore the law.

Illegal presidential actions do not become lawful because some doctrine of immunity protects a person who violates them from consequences. Crimes are still crimes. And criminals are still criminals, even if they cannot be adjudged as such. But Biden is correct to observe that what the Supreme Court has done here is to make compliance with the law, at least presumptively as to official acts, an entirely voluntary matter.

And it has done so knowing full well that a convicted felon who tried to overturn a lawful election waits in the wings to inherit the powers of the presidency.

The justices in the majority will surely tell themselves that deciding who wields the powers of the presidency is a political question, not the province of the judiciary to meddle in. But deciding with what new tools of abuse and impunity to arm the presidency just as such a man is on the verge of its accession is a decision, not an ineluctable deduction from history and text and case law.

 It is a decision of surpassing recklessness in dangerous times.