Don’t Overread the Court’s Immunity Opinion

The Supreme Court’s decision on presidential immunity, Trump v. United States, is not nearly as dire as many commentators have exclaimed. I wouldn’t have written the opinion that Chief Justice John Roberts did. But it does not make the president a king, and it does not give the president a license to act lawlessly.

On the contrary, a careful reading (and rereading) of the chief justice’s opinion reveals that it does little more than, as it says, “conclude that immunity extends to official discussions between the President and his Attorney General, and then remand to the lower courts to determine ‘in the first instance’ whether and to what extent Trump’s remaining alleged conduct is entitled to immunity.” Insofar as the opinion also sets forth some “principles” to provide “guidance” to further adjudication of the case on remand, those principles are not as problematic as some perceive them to be. They don’t let Donald Trump off the hook for his attempt to overturn his defeat in 2020. Nor do they give any future president, including Trump if he wins this year, a carte blanche to assassinate his political rivals or otherwise commit egregious crimes in the course of exercising presidential power.

Critics have typically voiced two categories of concern about the Court’s immunity decision. First is the fear that it cripples the current prosecution of Trump for his misdeeds in seeking to subvert Joe Biden’s 2020 victory. Second is the apprehension that it allows a future president to escape prosecution for truly heinous acts, like ordering “Navy Seal Team 6 to assassinate a political rival” (to quote the dissent’s invocation of this oft-cited hypothetical). Given what Roberts actually wrote in the Court’s opinion, however, neither worry is warranted. 

Holding Trump Accountable for What He Did in 2020

Much of the public discussion about the Court’s handling of the immunity issue has focused on its consequences for the effort to punish Trump for what he did in the aftermath of the 2020 election—what his detractors characterize as an attempted coup in his effort to cling to power. Even before the Court issued its decision, its critics deplored the Court’s timetable for deciding the case: By first refusing to bypass the court of appeals, and then not rushing its own consideration of the immunity issue, the Court effectively made it impossible to hold a trial before the November election on the criminal charges that Special Counsel Jack Smith brought against Trump.

I won’t address in detail the timing issue here. It’s an election-related point, and I’ve long argued elsewhere that Trump should not be criminally prosecuted for election-related reasons. Trump should have been disqualified from running for president this year, but that disqualification should have occurred by means of either a conviction in the Senate on his impeachment for his instigation of the Jan. 6 insurrection or the congressional enactment of a statute that would have authorized civil litigation to enforce the disqualification provision in Section 3 of the 14th Amendment. The failure of Congress to enact this kind of statute is what caused the Supreme Court to rule, in Trump v. Anderson, that Colorado was powerless to enforce the Section 3 disqualification provision on its own initiative. Trump thus remains eligible to run for reelection, and accordingly any assessment of any criminal prosecution against him—including any assessment of the extent to which he might be immune from prosecution for actions taken as president—should be conducted with respect to the relevant criminal law considerations at issue, and not with respect to any electoral objective. Evaluating the merits of the Supreme Court’s immunity ruling from this perspective, without regard to its electoral consequences, makes irrelevant whether any trial on the pending charges occurs before or after the November election.

Aside from the timing of the Court’s immunity decision, consider its substance. What effect will the substance of the Court’s immunity ruling have on prosecuting Trump for his alleged criminality in connection with the 2020 election? Some commentators have argued that the chief justice’s opinion will make it all but impossible for Smith’s team to proceed with their charges against Trump.

This is not true. To be sure, there are significant questions about the theories of criminal liability upon which Smith’s charges against Trump are based. Most prominently, in a separate case at the end of its term involving another Jan. 6 defendant, the Court narrowly interpreted one of the criminal statutes Smith invoked for two of his charges against Trump. The remaining charges also depend on statutes that are susceptible to narrowing interpretations that would take Trump’s conduct outside the scope of criminal liability under them. But if Smith’s charges against Trump ultimately fail because Trump’s conduct as alleged in the indictment doesn’t amount to the commission of a crime (and thus cannot survive a motion to dismiss the indictment as legally insufficient), that failure would have nothing to do with the substance of the Court’s immunity decision.

The one thing the Court’s decision does is rule out any prosecution of Trump based on his conversations with Department of Justice officials: “the President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for alleged conduct involving his discussions with Justice Department officials.” While significant, it is not much of an obstacle to prosecuting Trump for attempting to subvert the outcome of the 2020 election. The Court’s opinion does discuss other aspects of Trump’s conduct that Smith’s indictment alleges to be criminal, and the tenor of the Court’s discussion is to warn about the danger of prosecuting a president for official conduct even when that conduct is an abuse of presidential power for the purpose of obtaining a second term that the president did not actually win at the polls. But if one closely examines the way the Court discusses each aspect of what Trump did, it becomes clear that it is open to Smith to demonstrate on remand why Trump is not immune from criminal prosecution for that behavior.

Even concerning Trump’s conversations with former Vice President Mike Pence, which the Court considered the closest to being immune (apart from his conversations with Justice Department officials), the Court explained how Smith might be able to overcome a presumption of immunity. The Court observed, correctly, that the vice president’s role in presiding over the counting of electoral votes during the joint session of Congress under the 12th Amendment has nothing to do with presidential power under Article II of the Constitution: “Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes, see, e.g., 3 U. S. C. §15, and the President plays no direct constitutional or statutory role in that process.” Consequently, the Court’s opinion continued, Smith’s prosecution on remand “may argue that consideration of the President’s communications with the Vice President concerning the certification proceeding does not pose ‘dangers of intrusion on the authority and functions of the Executive Branch.’” In considering this particular point on remand, the trial court (Judge Tanya Chutkan) will need to be mindful of the degree to which a president is entitled to converse with a vice president as part of the president’s official duties, but that caveat does not foreclose the trial court from making a decision that the Supreme Court’s immunity explicitly leaves open for it to “assess in the first instance, with appropriate input from the parties.”

Regarding Trump’s communications with state officials as part of his efforts to convince them to reject Biden’s victory and support an alternative slate of pro-Trump electors, the Court’s opinion is more doubtful that Trump can successfully assert a claim of immunity. However, the Court does not rule out the possibility that on remand Trump can assert that these communications amount to official presidential conduct that would be presumptively entitled to immunity. All but endorsing Smith’s position on this point, Chief Justice Roberts explained why a president has no constitutional authority over the appointment of a state’s electors. First, Roberts observed that the Constitution “gives the States”—not the federal government—“far-reaching authority over presidential electors,” quoting the Court’s 2020 Chiafalo ruling on this point. Second, the limited authority of the federal government with respect to presidential electors (determining when they meet and counting their votes) belongs to Congress, and not the president, who Roberts noted “plays no direct role in the process, nor does he have authority to control the state officials who do.” Finally on this point, Roberts quoted Alexander Hamilton in the Federalist Papers for the proposition that “the Framers, wary of ‘cabal, intrigue, and corruption,’ specifically excluded from service as electors ‘all those who from situation might be suspected of too great devotion to the president in office.’”

Nonetheless, Roberts also observed that presidents historically have sometimes exercised appropriate presidential power in the enforcement of congressionally enacted election laws, including when President Ulysses S. Grant during Reconstruction sought to enforce federal legislation pursuant to the 15th Amendment’s guarantee of equal voting rights regardless of race. (A discussion of exactly what President Grant did, and did not, do—including specifically in the context of the 1876 presidential election—is an important matter that deserves more consideration than is warranted here.) Accordingly, the Court’s opinion includes within the scope of the remand a determination of whether any of Trump’s conduct in this regard could be considered appropriately (or “officially”) presidential in the way that Grant’s was. It is evident that the Court itself didn’t want to decide the matter one way or the other in the current posture of the case and instead left it to the lower courts to determine “whether Trump’s conduct in this area qualifies as official or unofficial.” And to the extent that Trump’s conduct is ultimately determined to be unofficial (meaning unconnected to a president’s authority under Article II of the Constitution), then it is not immune from prosecution, as the Court repeatedly stated in its opinion.

The same point applies to Smith’s charges against Trump insofar as they concern his speeches and tweets. The Court observed that much of what the president says publicly qualifies as official conduct, which is presumptively immune, but not all. Sometimes a president “speaks in an unofficial capacity—perhaps as a candidate for office or party leader.” If so, then presidential immunity does not apply to this particular speech (or tweet).

To be sure, it is understandable that many observers might be frustrated that the Court left so unclear exactly how and where to draw the line between official and unofficial conduct of a president. But Chief Justice Roberts left this line blurry in his opinion precisely because he did not want the Court to resolve the matter in the current posture of the case. The overarching attitude of the chief justice to the topic of presidential immunity was to decide as little as possible, leaving as much as possible to future resolution after further briefing and argument. Here’s one illustrative expression, among many, of this overarching attitude in the Court’s opinion: “Because we need not decide that question today, we do not decide it. ‘[O]ne case’ in more than ‘two centuries does not afford enough experience’ to definitively and comprehensively determine the President’s scope of immunity from criminal prosecution.”

Crucially, it is illogical to say that the Court left the matter blurry and yet simultaneously foreclosed the possibility of the prosecution winning the argument on remand. If it’s blurry, it’s unsettled—as indeed Roberts intended it to be. Any good litigator is capable of making an argument on an issue that the judiciary has deliberately left ambiguous, and the special counsel’s prosecution team is full of good litigators. It is simply untenable to think that the Court left unclear whether Trump’s speeches and tweets as charged in the indictment are official or unofficial and also think at the same time that the Court made it impossible for the prosecution to prevail on this issue when it is taken up again in the trial court.

All in all, the chief justice’s opinion signals to the lower courts in this case that they need to be careful in proceeding with any prosecution of Trump for what he did in his attempt to cling to power. This caution, even in Trump’s case, is warranted because of the momentous and unprecedented nature of prosecuting any former president for alleged criminality. Given that this case is the first of its kind in all of American history, the Court wants it to move forward with utmost sensitivity to the gravity of the situation. But that caution does not mean that the prosecution of Trump for his allegedly coup-like behavior is off-limits. It only means that Smith must show that prosecuting Trump for his allegedly criminal acts does not interfere with “the authority and functions of the Executive Branch.” That showing should not be a heavy burden on remand, given the nature of Trump’s actions.

Preventing Future Presidents From Going Rogue 

The other, even more important, concern about the Court’s immunity decision is that it gives a green light to future presidents, including Trump if he’s reelected, to abuse the powers of the presidency without any constraint imposed by criminal law. The leading example of this fear, as indicated above, is the SEAL Team 6 hypothetical: the possibility that a future president might order SEAL Team 6, or any other unit within the military, to perpetrate a targeted assassination of a political rival.

Justice Sonia Sotomayor, in her dissent, accused the Court of rendering a future president immune in this Seal Team 6 hypothetical. But having reread the Court’s opinion with this hypothetical in mind, I don’t find anything in it to warrant this accusation. I was most concerned that there might be some statement in Roberts’s opinion of the necessity to give the president absolute immunity for any action taken as commander in chief of the military, but I found no such statement. Moreover, Roberts himself ignores the specific hypothetical, other than to characterize it as “extreme” and “fearmongering,” a posture consistent with his desire to decide only “what is required to dispose of this case” and thus leave unanswered all other potential issues that might—or might not—arise concerning presidential immunity in a future case, including any involving the exercise of commander-in-chief authority.

To understand the potential long-term implications of the Court’s opinion in Trump v. United States, it is essential to emphasize as strongly as possible the importance of the Court’s overriding desire to decide as little as possible. Thus, with respect to almost all circumstances that might arise in the future, including the SEAL Team 6 hypothetical posited by the dissent, the Court’s opinion provides no binding rule. Future courts are free to address those cases as they think best within the broad parameters set forth by the Court in this first immunity ruling. In other words, with respect to any hypothetical scenario one might fear, like the possibility that a future president might “organiz[e] a military coup to hold on to power” (another of Sotomayor’s examples), Roberts purposefully refrained from uttering any nonbinding judicial “dicta” on the matter, and so it is mistaken to think (as many apparently do) that Roberts has already settled the matter.

More importantly, the general principles that the Court did articulate on the topic of presidential immunity, while more favorable to finding immunity than I would have been, are hardly the across-the-board “get out of jail free” card that some have suggested it to be.

In addressing the topic of presidential immunity, the Court’s opinion begins with—and relies throughout on—Justice Robert Jackson’s famous analysis of presidential power in his Steel Seizure Case concurrence. Chief Justice Roberts quotes Justice Jackson’s Steel Seizure concurrence in his very first paragraph of Part II of the opinion (the part that set forth his understanding of the law on this topic), and by my count Roberts cites or quotes Jackson’s Steel Seizure concurrence 10 times in the course of his immunity opinion. There is no doubt that Jackson’s vision of presidential power dominates and guides the Court’s reasoning regarding presidential immunity.

This fact alone should provide significant comfort to anyone concerned that the Court might be overly protective of presidential misconduct. Justice Jackson’s Steel Seizure concurrence is hardly a paean to presidential supremacy or the idea of the president unshackled by the constraints of law. On the contrary, the purpose of Jackson’s opinion is to explain carefully, and with as much nuance as feasible in the context of a single case, how the presidency even in the atomic age after World War II is subject to the limitations of the law as provided by the Constitution.

To appreciate the flavor of Justice Jackson’s concurrence and its conception of presidential power—and thus the significance of Roberts’s extensive reliance on it—it’s important to recognize the fact that Jackson had been attorney general under President Franklin Roosevelt before becoming a Supreme Court justice. He drew on his experience in the executive branch to say forcefully that while a president must be capable of acting effectively in the national interest, the Constitution does not require or permit giving a president unfettered authority or treating the president as equivalent to a king. “The purpose of the Constitution was not only to grant power,” Justice Jackson observed, “but to keep it from getting out of hand.” He continued: “The example of … unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image.”

The examples of Adolf Hitler and the other totalitarian governments of the 20th century were also freshly and firmly in Justice Jackson’s mind as he contemplated the power of the presidency under the Constitution. In contrasting the United States with those authoritarian systems, Jackson wrote: “The essence of our free Government is ‘leave to live by no man’s leave, underneath the law’—to be governed by those impersonal forces which we call law. Our Government is fashioned to fulfill this concept so far as humanly possible.” He closed his concurrence by declaring: “With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.” 

It is impossible to read Justice Jackson’s Steel Seizure opinion and believe that it authorizes a tyrannical president, who can order the assassination of a political rival with impunity. For this reason, it is unreasonable to read Chief Justice Roberts’s opinion for the Court in Trump v. United States—with its considerable dependence on Jackson’s Steel Seizure concurrence for the limited “guidance” it provides on the topic of immunity—and think that it invites this kind of tyrannical president. When Roberts writes over and over again that he’s only doing the minimum necessary to declare that Trump cannot be prosecuted for what he says to his attorney general, and leaving everything else unresolved, is it really warranted to think that Roberts wanted his words construed to entail conclusively that a president who orders the assassination of a political opponent must be immune from prosecution?

Even more significantly for the SEAL Team 6 hypothetical, Justice Jackson’s concurrence specifically discusses the president’s power as “commander in chief of the Army and the Navy of the United States,” observing pointedly that this power does not give the president the authority to defy the will of Congress regarding military matters. “Nothing in our Constitution is plainer than that declaration of a war is entrusted only to Congress,” Jackson states succinctly. He also adds that Congress is explicitly “empowered to make rules for the ‘Government and Regulation of land and naval forces,’” and so Congress by law may constrain the exercise of the president’s commander-in-chief powers.

Knowing all this about Justice Jackson’s concurrence, as Chief Justice Roberts surely does, should inform one’s understanding of the extensive reliance on Jackson’s analysis that undergirds the Court’s treatment of the immunity issue.

First, Roberts explains that Jackson recognized that there are some constitutionally specified presidential powers, such as the pardon power, that are beyond Congress’s authority to constrain. Quoting Jackson, Roberts characterizes these distinctive powers as “conclusive and preclusive”—the Constitution “disables the Congress from acting upon the subject.” According to Roberts, it logically “follows” from Jackson’s depiction of this special category of presidential powers that Congress “may not criminalize” presidential conduct within these domains, and thus the president must be immune from criminal prosecution for action taken within this “sphere” of “exclusive” presidential power.

But there is no reason to think that this category of “absolute” presidential immunity from criminal prosecution is especially large. Jackson himself did not conceive the category of presidential power over which Congress was constitutionally disabled from exercising any legislative control to be especially large. On the contrary, Jackson explicitly asserted: “Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”

Roberts invoked this category of presidential exclusivity only because the Court needed to decide whether or not any of Trump’s allegedly criminal conduct fit within it. Again, the Court specified that only Trump’s conversations with the Department of Justice fit within this special category. They did so because of the executive’s “exclusive authority and absolute discretion to decide which crimes to investigate and prosecute,” and because “Trump’s threatened removal of the Acting Attorney General” also fell within the exclusive domain of the president to terminate Executive Branch subordinates. But any presidential conduct of a different nature is not covered by the Court’s ruling and, absent other special circumstances, outside the scope of presidential exclusivity that Jackson himself considered so especially dangerous. Thus, given the Court’s explicit goal of not deciding anything more than necessary in Trump v. United States, coupled with the Court’s reliance on Jackson’s reasoning regarding presidential power, any future consideration of presidential immunity should assume that presidential conduct is outside the zone of exclusivity, rather than within it, unless and until there is a compelling reason why Congress must be disabled from legislating on the topic.

With respect to the SEAL Team 6 hypothetical specifically, nothing in Roberts’s opinion explicitly puts it within Jackson’s category of presidential exclusivity, and Jackson’s own opinion indicates that it would be entirely inappropriate to place it there. If a future president were to order SEAL Team 6 to assassinate a political rival, it would be an invocation of the president’s power as commander in chief of the armed forces. But, as Jackson himself explained, the president’s commander-in-chief power—unlike the pardon power—is not beyond the power of Congress to regulate and constrain. On the contrary, as Jackson also observed, it is Congress that has the power to declare war, and even more significantly Congress has the constitutional authority to “make rules for the government and regulation of the land and naval forces.”

One might worry that the Court would consider the commander-in-chief power to come within the scope of the president’s absolute immunity just because the Court held that the president’s power to remove and converse with the attorney general is subject to absolute immunity. But to equate the two is mistaken. Congress constitutionally cannot interfere with the president’s removal power: That’s what puts it in the same category for Justice Jackson’s analysis as the president’s pardon power, which Congress also can’t regulate. The commander-in-chief power is altogether different in this respect from either the pardon or the removal power: The Constitution makes it unquestionably clear, as Justice Jackson observed, that the president has no “monopoly of ‘war powers’ whatever they are” and that Congress can constrain the president’s “command of the army and navy” through its own constitutional power to regulate the armed forces.

Consequently, there is no doubt that Congress could enact a statute that prohibited the president, as commander in chief, from ordering any part of the nation’s armed forces—including SEAL Team 6—to perpetrate a targeted assassination of any U.S. citizen unless (a) Congress had declared war against a foreign enemy and (b) a properly constituted military tribunal of officers other than the commander in chief determined based on adequate evidence that the U.S. citizen in question had disavowed allegiance to the United States by becoming an enemy combatant on behalf of the foreign enemy against which Congress had declared war. If Congress enacted a statute of this kind, it would be specifically unlawful for the president to invoke commander-in-chief authority to order the assassination of a political rival. According to the reasoning of Roberts’s opinion in Trump v. United States, the president would not be entitled to claim absolute immunity for this asserted exercise of commander-in-chief authority in defiance of the congressional prohibition against this misuse of military power. And insofar as a future president were to be so brazen as to assert presidential immunity in this situation despite the explicit congressional prohibition, a prosecutor should be able to overcome any presumption of immunity just because the president was acting as commander in chief when violating this congressional prohibition.

Again, Roberts’s reliance on Jackson illuminates the point. Quoting Jackson’s description of a “zone of twilight” where Congress and the president have “concurrent” authority, Roberts writes: “The reasons that justify the President’s absolute immunity from criminal prosecution for acts within the scope of his exclusive authority therefore do not extend to conduct in areas where his authority is shared with Congress.” Because military matters are one of the areas where Congress and the president both have powers, ordering SEAL Team 6 to assassinate a U.S. citizen who is a political rival of the president would not fall within the scope of circumstances for which a president must have absolute immunity.

Moreover, any presumption of immunity that would attach solely because the president was acting as commander in chief when ordering SEAL Team 6 to assassinate a political rival should be easily overcome. A direct congressional prohibition on this kind of presidential malfeasance would mean that there would be no legitimate executive branch function that the president was purporting to pursue. As Roberts explicitly recognized: “The President, charged with enforcing the criminal law, is not above it.” A prosecution of the president for flagrant violation of this prohibition against egregious abuse of the commander-in-chief power should be able to easily show that it would not “pose any dangers of intrusion on the [appropriate] authority and functions of the Executive Branch.”

The Court’s separate ruling that prosecutors at trial may not introduce evidence concerning an official act for which the president is immune, the portion of the Court’s opinion with which Justice Amy Coney Barrett disagreed, does not interfere with the prosecution’s ability to show that certain official conduct—such as ordering the assassination of a political rival—is not entitled to immunity. The trial, along with any evidentiary issues associated with it, occurs long after questions regarding immunity have been settled in preliminary proceedings. At these preliminary proceedings, which occur before the judge and not the jury, the prosecution is able to make arguments (and provide any supplementary materials) relevant to the question of whether or not immunizing particular conduct would damage executive branch functions. Any factual questions concerning that immunity-related determination is very different from the factual issue, later at trial (assuming the conduct is not immune), of whether or not the president actually engaged in the conduct alleged in the indictment.

Thus, with respect to the SEAL Team 6 hypothetical, assuming the president did what was alleged, the preliminary proceeding on the immunity issue would concern the question of whether denying the president immunity for that conduct would harm the president’s legitimate Article II authority. Any relevant evidence pro or con on that point (perhaps testimony from prior presidents or defense secretaries or high-ranking military officers) would not involve evidence at trial on whether or not the president ordered the alleged assassination. To answer this immunity question, there would be no need for the prosecution to prove that the president actually ordered the assassination as alleged; the allegations in the indictment would be accepted as true for purposes of resolving the immunity issue itself, just as the allegations concerning Trump will be taken as true when resolving the remaining immunity issues on remand in the pending case. Moreover, if at the preliminary proceeding on the immunity question the prosecution overcame the presumption of immunity—because of, for example, a convincing presentation that Article II does not require any president to have unbridled authority to assassinate a political opponent even when Congress has explicitly chosen to prohibit any such abuse of presidential power—then the conduct would not be immune. And consequently, there would be no barrier to introducing at the subsequent trial any relevant evidence that the president actually engaged in such heinous and non-immune behavior.

In short, anyone troubled by the SEAL Team 6 hypothetical should be able to sleep a bit easier at night.

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One might have wished that Chief Justice Roberts had written an immunity opinion that signaled it would be easy to show that a particular action of a president was unofficial rather than official conduct. Or signaled that, even if the action in question was official, it could be easily shown not to be within the narrow category of exclusive presidential control. Or signaled that, for official conduct not within the narrow category of presidential exclusivity, a presumption of immunity nonetheless could be readily overcome by showing that a president had no legitimate executive branch basis for wishing to defy a direct congressional prohibition against presidential misbehavior. Any of these changes to the Court’s opinion, and especially all of them, would have made those of us concerned about rogue presidents feel more comfortable.

But even though one might have wished that Roberts would have drafted his immunity differently than he did, there is no justification for overreacting to what it actually says. It does not stop or stymie the prosecution of Trump for almost all of what he did in trying to negate Biden’s victory over him in 2020. More importantly, it does not immunize what evil and explicitly unlawful actions a future president might take in defiance of congressional legislation aimed at avoiding presidential tyranny.

Members of the media, and especially scholars of constitutional law, should stop demonizing the Court’s immunity opinion, asserting that Roberts wrote it with the goal of making the president functionally a king. Once one appreciates that Roberts endeavored to decide as little as possible in this opinion and, insofar as he decided anything, did so by relying as much as possible on Justice Jackson’s Steel Seizure opinion, one should realize that it’s inaccurate to argue that Roberts wanted to convert the president into an immunized despot.