Moving Beyond Absolutes on Presidential Immunity

Since the Supreme Court granted certiorari to review the presidential immunity issue in Trump v. United States, much has been said about the Court’s choice to wait until late April for oral argument. If the Court ultimately rejects Trump’s claim of immunity, it is not clear whether there will be time for the trial to happen before the November 2024 election. That is a concern. Equally concerning, at least, is the possibility that the Court might hold Trump immune. We cannot discount the possibility that the timing the Court selected for oral argument could reflect that at least five justices are presently inclined to hold Trump immune and thus are not worried about leaving time for a trial. To hold Trump immune would be a grave constitutional error and a travesty of justice. Yet describing precisely why is not as straightforward as some commentators have suggested. In my view, former presidents are immune from federal prosecution for exercising those powers that the Constitution grants to them exclusively, in ways that Congress may not regulate. But the immunity should extend no further, and Trump’s case involves no such exercise of power.

The Court granted certiorari to review the following question: “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.” (In context, we can assume the Court means to confine the question to federal prosecution, as I do here.) As summarized in the government’s initial filing before the Supreme Court, the charges against Trump allege, among other things, that he used deceit toward certain state officials to subvert the legitimate results of the presidential election in those states; that he deceitfully organized fraudulent slates of presidential electors in several states and caused them to send false certificates to Congress; that he leveraged the Justice Department to deceitfully cause state officials to replace their legitimate slate of presidential electors with electors who would vote for Trump; and that he tried to enlist then-Vice President Pence to fraudulently change the election results during the certification process in Congress on Jan. 6, 2021.

As a preliminary matter, it is not entirely clear which of these alleged actions constituted “official acts”—that is, acts taken by the president in his capacity as president. But let’s assume that at least some of them were official acts, insofar as Trump presented himself as president when taking the alleged actions and purported to invoke the authority of his office when trying to direct or persuade others to act as he wanted them to act. The question now before the Court is whether and to what extent Trump is immune from prosecution for those official acts. (As Marty Lederman has pointed out, if any of the actions the government alleges do not constitute official acts, the Supreme Court’s ruling may not actually impact Trump’s prosecution with respect to that conduct. The question of which acts were not official acts would presumably fall to the district court on remand.)

Ordinarily, the fact that someone acted in an official government capacity when committing a crime would provide no immunity from prosecution. But as the Supreme Court has long recognized, the president “occupies a unique position in the constitutional scheme.” His far-reaching responsibilities are not all reducible to textually explicit grants of power, but extend to include implicit “obligations growing out of the Constitution itself” that reflect “the nature of the government under the Constitution.” In order to ensure that he is not distracted from fulfilling those sweeping responsibilities, the Court in Nixon v. Fitzgerald held that the president is absolutely immune—both while in office and after leaving it—from civil damages liability on the basis of his “official acts.” And official presidential acts, the Court explained, include conduct falling within the “outer perimeter” of the president’s official responsibility.

But Nixon was limited to civil lawsuits (and only certain kinds of such suits, as I’ll explain below). The Court has never addressed whether and to what extent a comparable immunity applies in the very different context of federal criminal prosecutions. Thus, another way of framing the question in the current case is this: Whether and to what extent does Nixon v. Fitzgerald immunity apply to criminal prosecutions?

Trump and the government seem to have embraced opposite but equally absolutist answers to that question. Trump has suggested that as long as the charged conduct involved official presidential acts, a former president is always immune (unless he was first removed from office for those acts through the impeachment process). The government, in contrast, has seemed at times to suggest that a former president is never immune from prosecution for any acts, official or otherwise. The U.S. Court of Appeals for the D.C. Circuit seemed to embrace a similar position in its opinion below, on the theory that any presidential action that violates generally applicable federal criminal law necessarily exceeds the president’s lawful authority. In my view, neither of these absolutist positions is tenable.

The “Never Immune” Position

Although the precise question of a president’s immunity from criminal prosecution is one of first impression, it is part of a more general question: Whether and when may Congress regulate the president’s official conduct? The Supreme Court’s separation of powers jurisprudence is instructive here, especially the framework laid out by Justice Robert Jackson in his famous concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer. As Jackson put it, “Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” The president’s authority is at its maximum when he acts “pursuant to the express or implied authorization of Congress”; it is in a somewhat ambiguous “zone of twilight” when he acts in the absence of congressional authorization or prohibition; and it is at its “lowest ebb” when he acts in ways that are “incompatible with the express or implied will of Congress.” The last category is the key one for present purposes—Trump is charged with violating federal criminal statutes, meaning that he is alleged to have acted contrary to Congress’s will as expressed in those statutes.

If the president has the power to take a particular action even in the face of congressional prohibition, it is because the Constitution grants him exclusive authority in that area. It is no small thing to conclude that the president possesses such exclusive authority. Indeed, as Jackson emphasized in Youngstown, “[p]residential 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.” Yet we know that there are some limited areas where the president does wield such power.

One example is the recognition power, which is the president’s power to recognize or decline to recognize a foreign state. In Zivotofsky v. Kerry, the Court held that the recognition power belongs to the president alone and, therefore, that Congress cannot “command” the president “to issue a formal statement that contradicts” his own exercise of that power. The issue in Zivotofsky was whether Congress could require the executive branch to issue U.S. passports indicating that a person born in Jerusalem was born in Israel, despite the president’s determination not to take a position on whether Jerusalem was formally part of Israel. The Court held that Congress could not compel the executive branch to take that position. It follows that Congress also could not criminalize the president’s refusal to recognize Jerusalem as part of Israel. A former president would surely be immune from any attempt to prosecute him for violating such a statute.

Another example is the president’s power to grant pardons for federal criminal offenses. As the Supreme Court has explained, the president’s “plenary authority” over pardons comes solely from the Constitution, not from statute, and Congress cannot modify, abridge, or diminish it. (That is not to say that the scope of the pardon power is unlimited; even if Congress cannot restrict the president’s exercise of it, courts could conceivably determine that the power itself does not reach certain things—such as, perhaps, a self-pardon.) In other words, Congress may not direct the president in his exercise of the pardon power. It could not, for example, prohibit the president from pardoning people for committing certain crimes, nor could it compel him to do so. And by the same token, a former president could not be prosecuted for failing to adhere to any purported legislative restrictions on his pardon power.

There are two further points worth noting here. First, one might object that the immunity I am describing is not really an immunity at all. These hypothetical statutes are substantively and facially unconstitutional because they impermissibly intrude on powers that the Constitution grants exclusively to the president. One might distinguish between such substantive unconstitutionality on the one hand and official immunity on the other, where the latter concerns whether an otherwise valid legal rule can be enforced against a particular defendant in a particular context. For example, when a court concludes that a state officer enjoys qualified immunity in a money damages suit, it is not saying the underlying legal rule is invalid, or that the officer’s conduct was lawful. It is merely holding the officer immune from damages liability because their conduct was not clearly unlawful when they acted. Indeed, the real force of qualified immunity is that it can protect officers from liability for unlawful conduct. One might argue that the term “immunity” should be reserved only for that kind of situation. If so, the president would still be protected against criminal prosecution in the circumstances noted above. It just wouldn’t be called “immunity.”

However, I don’t think presidential immunity should be conceptualized the same way as qualified officer immunity. Instead, the better analogy is to Supremacy Clause immunity, which shields federal officers from state criminal liability in certain circumstances. The leading case is Cunningham v. Neagle, which involved an attempted state prosecution of a U.S. deputy marshal for shooting a man he believed was about to attack a justice of the Supreme Court, whom the deputy had been assigned to protect. The Court held the deputy immune from state prosecution for any act that was authorized by U.S. law and within his duties as a U.S. marshal, provided “he did no more than what was necessary and proper for him to do.” The deputy’s entitlement to immunity, in other words, turned on whether federal law (which, under the Supremacy Clause, trumps contrary state law) authorized him to act as he did. That is analytically comparable to the conception of presidential immunity I am describing here, which turns on whether the Constitution (which trumps contrary federal legislation) grants the president the exclusive power to take the action in question. The president’s immunity is a function of those powers that the Constitution grants exclusively and preclusively to him.

That leads to the second point. My hypothetical laws regulating the president’s recognition and pardon powers would apply directly and only to the president. What happens when Congress passes a law of more general application that, if applied against the president, would impinge impermissibly on his exercise of an exclusive, unregulable power? The answer is straightforward: Although the law might be constitutional as applied to others, the president would remain immune from prosecution for the reasons stated above. (Notably, the D.C. Circuit failed to account for this possibility.)

This conclusion is not as sweeping as it may sound. Most laws of general applicability do not touch on the president’s exclusive powers. And even with laws that do, it is important to distinguish between laws that regulate exclusive presidential authority and laws that regulate matters adjacent but not inherent to such authority. The former are impermissible and would result in presidential immunity; the latter are valid and would not. Consider the federal criminal prohibition on bribery. Suppose the president pardons someone after taking a bribe to do so. Does the exclusive nature of the pardon power render him immune to prosecution for taking the bribe? No. We can separate the two. Congress cannot criminalize the exercise of powers that the Constitution grants exclusively to the president. Thus, the pardon itself would remain in effect even though the president granted it in response to a bribe. But the bribe was not inherent to the exercise of those powers, and, as the Office of Legal Counsel has recognized, the Constitution “confers no power in the President to receive bribes.” So after leaving office, the president may be prosecuted for taking the bribe even though Congress may not undo the exercise of his exclusive authority.

There is another principle that mirrors this conception of presidential immunity. The Office of Legal Counsel has referred to it as a clear statement rule, which instructs that, if a statute does not explicitly refer to the president and if application of the statute to him would “involve a possible conflict with his constitutional prerogatives,” the statute should be construed not to apply to the president. This rule supports the more general principle that statutes should be construed to avoid constitutional concerns. But again, the clear statement rule is not as sweeping as it may sound. If a statute raises no separation of powers concerns when applied to the president, the clear statement rule simply does not apply. In my view, the scope of the separation of powers concerns that should trigger the clear statement rule is coterminous with the scope of the president’s exclusive, unregulable constitutional authority. If understood on those terms, the substantive reach of the clear statement rule is essentially the same as the scope of the immunity I am describing here (subject to one further complication discussed below, about reasonable but mistaken beliefs about the scope of the president’s exclusive authority).

(Incidentally, the government acknowledged the clear statement rule in its briefing in the district court. It correctly framed the rule as bearing on statutory inapplicability, not presidential immunity. That difference may help explain why Trump, thus far, has not placed any reliance on the clear statement rule: Whereas the district court’s denial of his claim of presidential immunity was subject to interlocutory appeal, the denial of a claim that the statutes he’s charged with violating simply don’t apply to him may not have been. In any event, if Trump had framed his argument in terms of statutory inapplicability under the clear statement rule, the merits of the argument would have been just as wrong as his immunity argument here.)

Of course, the charges against Trump have nothing to do with exclusive presidential powers like the pardon power or the recognition power. The point here is simply that these examples foreclose the idea that a former president is never immune from criminal prosecution for his official acts.

The “Always Immune” Position

Trump’s contention that (absent impeachment by the House and conviction by the Senate) a former president is always immune from prosecution for his official acts fares no better. Admittedly, the novelty of Trump’s argument (and the conduct for which he has been charged) means that there is no judicial precedent squarely confronting and rejecting it. But once again, the Youngstown framework is helpful. Recall the distinction that Jackson drew between presidential actions taken in the absence of any direction from Congress and actions taken in the face of congressional prohibition. If the distinction has any purchase, it must be because there are some presidential acts that would be lawful if Congress had said nothing on the matter but unlawful if Congress had prohibited them. That must mean that Congress does have the authority to regulate or even prohibit some official presidential acts.

Consider the “SEAL Team 6” hypothetical that Judge Florence Pan posed at oral argument in the D.C. Circuit. If a president exercising his commander in chief authority ordered SEAL Team 6 to assassinate a political rival, would he be immune from prosecution? The order would presumably constitute an official presidential act pursuant to the president’s power as commander in chief. Would the official nature of the act be enough to confer immunity?

No. By making the president the commander in chief of the armed forces, the Constitution does confer on him a measure of inherent power. For example, the Justice Department has long taken the position that, even without prior congressional authorization, the president has some inherent power to direct the use of military force against hostile nations when necessary to protect national security. But that does not place the commander-in-chief power categorically beyond congressional regulation and limitation. That is the difference between the second and third categories in Jackson’s Youngstown framework. And nothing in the Court’s cases suggests that the president’s authority as commander in chief entails an exclusive, unregulable power to kill a domestic political rival. Thus, to the extent directing such a killing would violate federal criminal law (such as the federal statutory prohibitions on murder), the fact that the president directed SEAL Team 6 in his official capacity as commander in chief would not immunize him from prosecution.

Insisting, as Trump seems to do, that the Constitution places all official presidential acts beyond the scope of congressional regulation not only ignores the teachings of Youngstown but also places the president above the law. If a former president cannot be prosecuted for any of his official acts, then the criminal law simply does not apply to him in his official capacity. If that is the rule, then former President Nixon was right to say that “when the President does it, that means that it is not illegal.”

Trump tries to justify this breathtaking position in two ways. First, he couches his argument in a claim that the federal judiciary simply lacks the authority to sit in judgment of the president’s official acts. He argues, for example, that when courts review the legality of executive action directed by the president, they really only review the acts of the president’s subordinates in the executive branch, and that any injunction or other judicial order is invariably directed at those subordinates and not the president himself. In other words, it’s not so much that Congress cannot regulate the president’s official acts; it’s just that the courts don’t have jurisdiction over him to ensure his compliance.

But that argument is at odds with the Supreme Court’s decisions. In fact, the Court has expressly said that “the separation of powers doctrine does not bar every exercise of jurisdiction over the President.” It is true that courts generally avoid enjoining sitting presidents, but that prudential preference does not state a categorical immunity. Indeed, the Court has on occasion subjected a sitting president directly to judicial process (as in United States v. Nixon) or contemplated doing so without suggesting it would implicate any categorical immunity (as in Trump v. Hawaii). Besides, to the extent courts are reluctant to direct the actions of incumbent presidents out of practical concerns about enforceability, those concerns don’t apply to the prosecution of a former president.

Trump’s second kind of argument is more prudential. Even if the courts might have the authority to hear criminal cases against a former president, Trump insists that a rule of absolute immunity for all official acts is necessary to protect against future abuses, such as politically motivated prosecutions by current administrations of the opposite party. This is essentially an argument that the Court should simply apply the rule of Nixon v. Fitzgerald to the federal criminal context, on the ground that the differences between the civil and criminal contexts are less important than the common interest in protecting presidents from persecution through vexatious litigation of any kind. The Youngstown framework doesn’t directly engage with this kind of claim. Instead, it is best dealt with on its own terms: As a matter of prudence, would the Court be justified in fashioning a novel rule of absolute criminal immunity for all official acts?

I think not. As the D.C. Circuit recognized, privately initiated civil litigation and federal criminal prosecution are not the same, and they should not be governed by the same immunity rule. Start with Nixon v. Fitzgerald itself. Although we colloquially speak of its immunity rule as covering all civil damages suits against the president, the majority opinion in the case was explicit that its holding extended only to privately initiated suits relying on implied causes of action—that is, suits where the plaintiff did not have an express authorization to sue from Congress. The majority left open the possibility that the president might not be immune from damages suits expressly authorized by Congress—whether initiated by a private plaintiff or, presumably, the government in a civil enforcement posture. (Chief Justice Burger thought otherwise in his concurring opinion, but he was alone on that point; presumably the four dissenting justices, who disagreed with the finding of immunity in that case, thought there should also be no immunity from suits expressly authorized by Congress.) Of course, there are no implied private causes of action in federal criminal law. Congress has already explicitly made the enforcement determination by authorizing the Justice Department to prosecute federal crimes. The civil and criminal settings are simply not comparable.                 

The risk of vexatious or vindictive litigation is also dramatically different across the civil and criminal contexts. If the president were not immune from privately initiated damages lawsuits relying on implied causes of action, there might be no limit to the number of such suits he could face, meritorious or otherwise. The chilling impact of such exposure could be severe. Federal criminal law, in contrast, is enforceable only by the government through the procedural rigors of prosecution. Trump raises the prospect that politicized future Justice Departments might make prosecuting former presidents a routine thing. That has not happened to date, even though the Court has never intimated that past presidents are immune from prosecution. Part of the reason, as the government has noted in its filing before the Court, is that there are a variety of procedural and institutional safeguards protecting against such abuses. In any event, Trump’s bare speculation about possible future abuses does not warrant the adoption of a sweeping new rule of immunity now. 

There is, in sum, simply no basis for ignoring the critical differences between civil litigation and criminal prosecution and according the president a categorical immunity that would render him uniquely and completely beyond the reach of the criminal law for his official acts.

The “Sometimes Immune” Position

Recall that, as framed by the Court, the question in this case is “[w]hether and if so to what extent” the president is immune from prosecution for his official acts. Neither always nor never is a tenable answer. The “never immune” position ignores the fact that the Constitution grants the president certain authorities that Congress cannot regulate. The “always immune” position renders the entirety of the criminal law inoperative against the president for his official acts. Only a “sometimes immune” position can work.

Specifically, as I have argued here, presidential immunity from criminal prosecution should be limited to circumstances in which the prosecution would punish a former president for the exercise of an exclusive, unregulable presidential power. Unlike the two more extreme alternatives, this position accounts for the nuanced ways that separation of powers doctrine treats executive power. It respects zones of exclusive presidential authority while leaving Congress considerable leeway to subject the president to the requirements of the law.

One difficulty, of course, is that the precise metes and bounds of the president’s exclusive powers are not specified by the constitutional text, Supreme Court precedent, or the settled practices of the government. Given that uncertainty, one could argue that the president should be immune from prosecution for acts that he could reasonably have believed were within his exclusive authority, even if the courts later conclude otherwise. (Seth Waxman and I have argued for that sort of standard in the analogous context of Supremacy Clause immunity.) To be clear, this would not be a matter of privileging Trump’s purported beliefs about whether the 2020 presidential election really was stolen, or whether it was legitimate for Pence to refuse to certify the election results. Instead, the question would be whether, given the current state of separation of powers doctrine, a president could reasonably believe not just that the actions charged in this case were somehow related to the president’s general responsibilities (in the sense of being official acts), but that the Constitution committed them to his exclusive authority and discretion.

Even judged against that more expanded standard, Trump’s immunity argument in this case clearly fails. There is a reason he insists that the official nature of the charged conduct is sufficient to confer immunity. If the Court finds that official conduct is a necessary but not sufficient condition for immunity, Trump has nothing more to offer. The Constitution and laws assign the president no role whatsoever, much less an exclusive one, in the administration of elections, or in the composition of slates of presidential electors, or in the certification of presidential election results. True, a variety of federal laws do govern aspects of elections and voting, and the president is the head of the executive branch that enforces those laws. But those laws do not sit on any superior footing to the laws Trump is charged with violating. Whatever role he had in seeing that federal voting rights laws were properly enforced is circumscribed by the laws he is charged with breaking here. And in any event, there is no colorable argument that Trump’s alleged actions in this case entailed any genuine attempt to enforce federal law.

That is enough to dispose of Trump’s assertion of immunity in this case. Yes, presidents do enjoy some degree of immunity from prosecution for their official acts, when those acts involve the exercise of powers the Constitution grants exclusively to the president and that Congress may not restrict. But the Constitution gives the president no such power when it comes to changing the outcome of a presidential election after the fact. And it will not save him from being prosecuted for doing so.